Participationof the Kingdomof Morocco tothe procedure
(written proceedings)beforethe International CourtofJustice in
the case:
Legalconsequences oftheconstructionof a wall in the occupied
PalestinianTerritory
-Requestfor an advisoryopinion-
In its procedural ruling on the case of the legal consequences arising out
of the construction of a wall inthe occupiedPalestinian Territory (request for an
advisory opinion), rendered on 19 December 2003, the International Court of
Justice decided that "in accordance with paragraph2 of Article 66 of the Statue,
the United Nations Organization and its Member States are competent to
provide information on al1aspects of the question submitted to the Court for an
Advisory Opinion"
The question submitted to the Court by the General Assembly in its
resolution AIRESIES-10114of 8 December 2003, in accordance with article 65
of the Statutereads as follows:
"What are the legal consequences of the construction of the wall being
built by Israel, the occupying Power, in the Palestinian Occupied 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,and relevant Security Council
and General Assembly resolutions?"
The Kingdom of Morocco has the honor of taking part in the written
proceedings before the Court, by providing information on the overall aspects of
the question submitted to it for advisory opinion. Since His Majesty King
Mohammed VI chairs the Al Qods (Jerusalem) Committee of the Organization
of the Islamic Conference, the Kingdom of Morocco would like to place
emphasis on the legal consequences of the construction of the wall "in and
around East Jerusalem". It should be recalled that the General Assembly requested the Court to
review the "legal consequences of the construction of the wall" after having
demanded in resolution E-1013of 21October 2003 "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 provisionsof international law" 1.
The Assembly confirms the illegality of the construction of the wall, and
requested Israel to assume its international responsibilities by rectifiing this
illegality act and reversing the situation (restitution in integrum) 2.The Secretary
General was requested to report periodically on Israel's compliance with the
resolution. Upon receipt of the first report, new measures should be
contemplated, if necessary, by the relevant United Nations bodies.
In his report of 24 November 2003, the SecretaryGeneral "concluded that
Israel is not in compliance with the Assembly's demand".He added that if he
recognized " Israel's right and duty to protect its people from terrorist attacks,
this duty should not be carried out in a way that is in contradiction with
international law". In so doing, the Secretary Generalconfirms the illegality of
the act, while setting aside the circumstances evokedby Israel to counter it.
In the face of Israel's refusa1to discharge itsinternational responsibilities
by reversing the illegal act, the General Assemblydecided to seek the Court's
opinion on the legal consequences of the construction of the wall. The Court's
opinion is designed to provide the General Assembly with a clarification of
these consequences so as to enable it to exercise its prerogatives under the
Charter with full understanding ofthe facts 3. The legal opinion of the Court can
also help other United Nations bodies, including the Security Council, with
respect to any action they mightbe called upon to take.
1 The Security Council was unable to adopt a resolution on the illegality of the wall due to the
negative vote of a Permanent member (S/PV 4841 and S/PV 4842, of 14 October 2003) which
prompted the chairman of the Arab Groupto request the resumptionof the second Special Emergency
Sessionof the General Assembly.
2 Article 35 on "restitution" in the Annex to.A.Res.56183 on the ILC's articles on "State
responsibility for internationallywrongful acts".
3 As stated in the Court's advisory opinion onthe reservations to the Convention for the prevention
and punishment of the crime of genocide: "thepurpose of the present request is to clari@the action
which mightbe taken by the United Nations"(ICJ, 1951compendium,pg. 19). In addition to Israel's non-compliance withthe Assembly's demand, the
Secretary General's report contains specific and documented information on the
wall and its state of advancement.
The planned route of the wall stretching over a distance of 720 kilometres
along the West Bank would result in the annexation de facto of 975 square
kilometres (Le. 16.6%of the entire West Bank)
According to Secretary General's report " this area is home to
approximately 237,000 Palestinians, 170,000 in the West Bank and 220,000 in
East Jerusalem. If the full route is completed, another 160,000Palestinians will
live in enclaves, areas where the Barrier almost completely encircles
communities and tracts of land. The planned routeincorporates nearly 320,000
settlers, including approximately 178,000 in occupied East Jerusalem". This is
an indication of the gravity of the situation of Jerusalem which would not only
be cut off from the interior, by a wall encircling the Palestinian population Abu
Dis, but would also be separated on the other side from the rest of the West
Bank by another wall which would incorporateal1the settlements located on the
outskirts of Jerusalem. Completed sections include two parts totalling 19.5
kilometres that flank Jerusalem, and a 1.5kilometre concrete wall inthe Eastern
Jerusalem community of Abu Dis. When we look atthe close links which exist
between the villages which flank the Eastern and Southei-nparts of Jerusalem
and the city itself, we can realize the great socio-economic damages caused to
thousands of villagers as a result of the construction of the wall. As of the
issuance of the report, close to 120 kilometres have already been completed in
the West Bank, with the clear purpose of incorporating the largest possible
number of settlements into the territory of Israel.
The construction of the wall and its security areas has necessitated
requisitioning Palestinian lands on the basis of military orders which become
effective on the date they are signed. They have no basis in Israeli law. In
emergency cases, land is requisitioned even before the order is issued. The order
then becomes effective retroactively following its signature. If the order is
appealed, the appeal must be submittedto instances ofthe Israeli army.
In several places the wall runs deep into areas beyond the Green Line
agreed upon in the Armistice of 3 April, 1949,which represents the de facto
border between Israel and the Occupied PalestinianTerritories.
In the wake of the June 1967 war and the occupation of the West Bank
and Jerusalem, the Security Council requested that Israel withdraw its armed
forces from occupied territories, on the basis of the principles of the Charter
(Article 2), namely the prohibition of the use of force, and its corollary, "theinadmissibility of acquisition of territory by force" (Security Council resolution
242 of 22 November, 1967). This resolution, related to resolution 338 of 22
October 1973, has binding force as the basis for a peaceful settlement, since it
not only reflects the relevant principles of International Law, but has also been
accepted as binding by al1the warring parties, including Israel. This is the case
regarding the Camp David Accords between Egypt and Israel in conflict of 17
September, 1978, the Declaration of Principles on Interim Autonomy
Arrangements signed by Israel andthe Palestine Liberation Organization (PLO)
in Washington D.C. on 13September 1993,and the Interim Accord on the West
Bank and the Gaza Strip signed by Israel and the Palestine Liberation
Organization on 28 September, 1995in Washington.
The PL0 was recognized as the sole legitimate interlocutor on the
question of the status of the Palestinian Territories in a resolution on Palestine
adopted by the 7th Arab Summit held in Rabat on 28 October 1974. This
resolution "assertsthe right of thePalestinian people to establish an independent
National Authority under the auspices of the Palestine Liberation Organization,
as the legitimate representative of the Palestinian people, overthe entirely of the
territory to be liberated". Whenthe National Council of the PL0 proclaimed the
State of Palestine, in Algiers, on 15 November 1988, the United Nations
replaced the name of PL0 with "Palestine" to participate, as an observer, in the
United Nations system.
As far as the international community isconcerned, Israel's presence in
the Palestinian territories in the WestBank beyond the Green Line in Gaza and
East Jerusalem is part of an illegal regime of occupation of territories by force.
The first legal consequence of constructing the wall is the further extension of
the annexation of Palestinian territory and requires action on the part of the
international community. When the Knesset, on 30 July 1980, passed a basic
law stating that the "undivided and reunited Cityof Jerusalem is the eternal
capital of Israel", the reaction of the Security Council was swift. In resolution
478 of 20 august, 1980,it reaffirmed"that Israel's adoptionof the basic law is a
violation ofInternational Law and does not affect the application, to the
Palestinian territories and other Arabterritories occupied since 1967, including
Jerusalem, of the Geneva Convention of 12 August 1949 on the protection of
Civilians in times of war".
The second set of consequences involves individual and collective rights
of Palestinians variously affectedbythe construction of the wall.
In issuing the advisory opinion requested by the General Assembly, the
Court will first have to deal with the annexation of the Occupied Palestinianterritories and secondly with violations of the rights of Palestinians in the
occupied territory.
1- Annexation of the occupied territories:
Rather than dismantling the rapidly built and developed settlements, as
consistently demanded by the international community, Israel, in building the
separation wall, has chosen instead to proceed to important deviations from the
Green Line, in order to incorporatethe settlementswithin the Israeli side.
The importance of the construction of the wall and the means used for it
indicate that this is a definitive barrier designedto determineunilaterally Israel's
border, without any attempt to come to an agreement with the approval of
United Nations and in conformity with SecurityCouncil resolution 242 and the
principles of the Charter.
As stated by Professor John Dugard "however, it should be recognized that
what we are presently witnessing in the West Bank is a visible and clear act of
annexation under the guise of security. Theremay seem to be no officia1act of
annexation of the Palestinian territory in effect transferred to Israel by the
construction of the wall, but everything indicates that it is an act of
annexation" 4.
Such annexation is illegal in accordance with the principle of the
"inadmissibility of acquisition of territory by war".
Since passage of a general prohibition on the use of force (1928 Briand-
Kellog Pact and Charter of the United Nations) 5 conquest is no longer
considered a legitimateway of acquiringterritory. The Declaration of Principles
of International Law on Friendly Relations and Cooperation between States in
accordance with the Charter of the UnitedNations (resolution 2625 XXV of 24
October 1970) provides a clear interpretation of this issue: " no territorial
acquisition resulting from the threat of use of force shall be recognized as
legitimate" irrespectiveof "whether the territory is acquired as a result of an act
of aggression or in self-defence" 6.
4. Report of the special Rapporteur of theHuman Rights Commission, Mr. John Dugard, on the
situationof HumanRights inthe Palestinian territory occupiedby Israel since 1967,EICN,416Para. 6,
of 8 September, 2003,submittedunder Resolution 199312A of the Commission.
5.p. Daille& A. Pellet: Droit internationalpublic", L.G.D.1,Paris, pg.531.
6. Dugard, samereport, Para.14. In order to fully fulfil the request of providing an advisory opinion, the
Court should rule that there is de facto illegal annexation of the Palestinian
territories located between the wall and the GreenLine, it will have to clari@for
the benefit of the General Assembly the legalconsequences resulting from this
situation.
First of all, Israel will have to put an end to the illegal act, as
unsuccessfully demanded by the General Assembly inresolution ES-1011 3 of 21
October, 2003, by stopping the construction of the wall and dismantling the
portions already built. Should this illegal situation persist, the other United
Nations Member States will have to draw the appropriate legal conclusions by
refusing to recognize the annexation or giving Israel any form of assistance in
the construction or maintenance of the wall. The Court's jurisprudence
6
regarding the consequences of such illegal situations are well established:
when a competent United Nations body has determined with certainly the
presence of an illegal situation, this determination must have consequences. In
this situation, the Court would fail in itsjudicial responsibilities where it not to
state that it is an obligation exists for membersof the United Nations to put an
end to this situation". The ICJ also added that South Africa, which bears
responsibility for having created and prolonged a situation rightly deemed
unlawful by the Court, is duly boundto put an end to it 7.
Regarding the relations of other Member States with a state which
engages in unlawful conduct, it isthe responsibility ofthe political bodies of the
United Nations to define them and determine their scope 8 in accordance with
principle ofnon recognition and non assistance.
The Assembly decided to request the Court's advisory opinion on the
question of Israel's construction of the wall precisely in order to be duly
informedon any possible futureaction.
7. Advisory opinion of the ICJ of 21 June, 1971, on the legal consequences for states of the
continuing presence of South Africa in Namibia (South West Africa) in particular Security Council
Res.276(1970) 1971Compendium,parkas-l17& 118.
8. Ibid. Para.120. On 30 July, 1980 the Security Council arrived at a conclusion regarding
the legal consequences of Israel's law on the annexation of Jerusalem "in
violation of international law", when it requested al1Member Statesto consider
it nul1 and void (resolution 478 of 30 August, 1980). The Court should now
consider extending this obligation of non-recognition to the part of the
Palestinian territory which flanks East Jerusalem,specifically in connectionwith
the construction ofthe wall.
Resolution 478 considers the lawas "an obstacle to the establishment of a
comprehensive,just and lasting peace in theMiddle East".
There is a clear legal consequence in connection with the change of the
status of Jerusalem, especially since the "result-based Roadmap for the
permanent settlement of the Israeli-Palestinian conflict by the two States,"
established by the Quartet (S-20031529of 7 May, 2003) and approved by the
Security Council (SC Res. 1515of 19November,2003) stipulates that there will
ultimately be "a negotiated settlementon the question of the status of Jerusalem,
taking into account the political and religiousconcerns of the two parties, which
will protect the religious interests of the Jewish, Christian and Muslim
populations of the whole world and which conforms to the principle of two
States: Israel, and a sovereign, independent, democratic and viable Palestine,
living side-by-side in peace and security".
The annexation of Jerusalem, compounded by the construction of the
wall, adversely affects not only the Israeli-Palestinian peace process, as each
State will have links to this capital, but also itsspiritual dimension for the three
religions. The most salient of these interests are the protection of the Holy Sites
and freedom ofaccess for al1faithful.
The organization of the Islamic Conference and its AL Qods Committee
under the Chairmanship of His Majestythe lateKing Hassan II were established
following the fire ignited in 1969inthe Al AqsaMosque, the third holiest site of
Islam.
The annexation of the occupied Palestinian's territories will have
consequences on the settlement of the Israeli-Palestinian conflict as well as the
maintenance of international peace and security. In fact, the Israeli-Palestinian InterimAccords on the West Bank and the
Gaza Strip (Washington D.C. 28 September 1995) 9,as well as the Declaration
of Principles on Provisional Autonomy Arrangements (Washington D.C. 13
September 1993) and the Roadmap are based on Israel's withdrawal from the
territories occupied in 1967.Bytaking unilateral action and annexing part of the
territories, Israel is in breach of its commitmentto negotiate on the basis of land
for peace.
This is an important legal consequence of the construction of the wall
which will have to be considered by United Nations bodies in their efforts to
bring about a peaceful settlementof the Israeli-Palestinian dispute.
The extension of Jerusalem and its total annexation go beyond the
settlement of the Israeli-Palestinian conflict, as well as infringing the
fundamental rights of millions of Muslim and Christian faithful to enjoy
protection of and unhindered accessto Holy Sites.
But, the construction of the wall also runs counter to some of the most
fundamental rights of the Palestinians, a legal consequence which, if so
determined by the Court, should prompt international bodies to take action to
help the individuals concerned.
II- Violations of Palestinian Rightsin the occupied territories:
For the purpose of including within Israeli territory the largest number of
settlements from the occupied Palestinian territory, the wall, "in some places
creates a barrier that completely encircles Palestinian villages while at many
points it separates Palestinian villages from the rest of the West Bank and
converts them into isolated enclaves. Qalqilia, a city with a population of
40,000, is completely surrounded by the wall and itsresidents can only enter or
leave through a single military checkpoint open from 7 a.m. to 7 p.m." 10.
Palestinians living between the wall and the Green Line are by and large
effectively cut off from their land and work places.The various constraints and
restrictions imposed by the construction of the wall seriously undermine the
fundamental rights of the Palestinians, such as their humanitarian and human
rights, asguaranteed under international legal instruments.
9. Para. 1of Art. IXof the Accord Statesthat "both partiesconsiderthe West Bank andthe Gaza Strip
10.J. Dugard,same report, Para.9.se statusand integrity willduringthe interim period". 1- Violation of the humanitarian law:
We should begin by recalling that the Fourth Geneva Convention on the
Protection of Civilians in Times of War of 12August 1949 is applicable to the
Palestinian territories occupied since 1967,includingJerusalem.
Although the government of Israel signed and ratified the Convention, it
considers that it does not apply to the occupied territories since they do not fa11
under the sovereignty laws of neighbouring countries, namely Jordan and
Egypt i 1.
However, as stated by the International Committee of the Red Cross
(ICRC) and the Conference of the High Contracting Parties, the Convention
applies to territories occupied as a consequence ofarmed conflict, irrespective of
their prior status 12.
The Security Council and General Assembly of the United Nations
reaffirmed this conclusion 13.
While Israel's Supreme Court agrees withthe acceptance by Israel Court
of the Hague Regulation as an integral part of international custom, it refused to
apply the Fourth Geneva Convention since the later has not been incorporated
intothe Israeli legal system 14.
11.Reportof the SecretaryGeneral(24 Nov,2003)pursuantto GeneralAssembly resolution ES-
10113, Annex 1"Summarylegal positionof the Govemment of Israel".
12.See 1975AnnualReport ofthe ICRCp.g.22 and the Declaration adoptedbythe HighContracting
Parties to theFourthGeneva Conventionon 15July, 1999pursuantto GA Res.ES-1016.
13.see interalia SecurityCouncil Res.904of 18March, 1994andGA Res. 58/97of 9 Dec.,2003.
14.HCI606178SuleimanTawfiqAyyubet al vs-Minister of Defenseet al, et 6: (1978) 33(2) P.D.
113;9 Isr YHR(1979)337. Nevertheless, the Israeli Supreme Court could well have used the same
argument for the Convention as it did when it recognized the customary nature
of the Hague Regulations, inter alia, by referring to the jurisprudence of the
International Court of Justice. In its ruling on the matter ofNicaragua's military
and paramilitary activities, the International Courtof Justice, determined, on the
basis of Article 1 of the four Geneva Conventions, that " the United States has
an obligation "to respect" and " ensure respect" for these Conventions " in al1
circumstances", since the obligation stems not only from the Conventions
themselves, but from the general principles of international laws which are
simply reflected in the Conventions" 15.Since such a large number of States
have ratifiedthe Geneva Conventions (1 91atpresent), "this universality (which)
allows them to be considered as the authoritative formulation of Customary
Law" has turned them into doctrine 16.
The customary nature of the regulations contained in the Fourth Geneva
Convention places certain obligations upon Israel even though the text has not
been ratified, or incorporated into national lawthrough the adoption of special
legislation. As it will be revealed, these are "self-executing" obligations which
place upon a State certain prohibitions or limitations regarding its prerogatives
as an occupying power and they apply even when there is no corresponding
national law.
It is clear that the construction of a wall is a violation of the following
provisions of the Fourth GenevaConvention:
Article 49 states that " Individual or mass forcible transfers, as well as
deportations of protected persons from occupiedterritory to the territory of the
Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive."
The annexation of the Palestinian territorythrough the construction of the
wall and its enclosure of entire populations can be equated with mass forcible
transfers.
Article 52 states that " Al1measures aimed atcreating unemployment or
at restricting the opportunities offered to workers in an occupied territory, in
order to induce them to work for the Occupying Power, are prohibited". This is
clearly the case of what is referred to as the "Bantustanization" of the occupied
Palestinian territory.
15. Militar& paramilitary activitiesinNicara(Nicaragua vs. United Staes of America) See Inter
alia the advisory opinion of 8 July 1996in the case of the illegality of the threat or use of nuclear
weapons.
16.p. Daille& A. Pellet, same doc., pg.927. Article 53 states that " Any destructionby the Occupying Power of real or
persona1property belonging individually or collectively to private persons, or to
the State, orto other public authorities, orto social or cooperative organizations,
is prohibited, except where such destruction is rendered absolutely necessary by
military operations."
Construction of the wall has resulted in the destruction of Palestinian
property, in violation of the Convention.
This is not a case of an absolute requirement of military operations. Such
operations are usually targeted, for purposes of defending against attacks, while
the wall is a construction designed to be a lasting " fait accompli". Nor can it be
justified on the grounds of guaranteeingthe safetyand security of Israeli citizens
who live on the occupied territories, since the establishment of settlements is
itself illegal.
Finally it is important to emphasise that "the Occupying Power has the
duty of ensuring the food and medical supplies of the population" (Art. 55 of the
Convention) and yet the wall has separated thousands of Palestinians from their
agricultural lands and their places of work.
Under International Law, the serious violations of Humanitarian Law
perpetrated in the Palestinian territory should give rise to Israel's criminal
liability, which is an issue that the Court shouldassess in its review of the legal
implications of the building of the wall.
2- Violations of fundamentalrights ofthe human person:
Here again Israel challenged the application to the occupied Palestinian
territories of the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social andCultural Rights while having
ratified both.
Despite opposing the application of the Fourth Geneva Convention, Israel
"asserts that humanitarian law is the protection granted in a conflict situation
such as the one in the West Bank and the Gaza Strip, whereas human rights
instruments were intended for the protection of citizens from their own
Government in times of peace" 7.
17. Report of the Secretary Gene(a24 Nov., 2003)pursuant to General Assembly resolution ES-
10/13,Annex 1" Summarylegalpositionofthe Governmentof Israel". International law is no longer limited to this restrictive view of the
protection of human rights conceived as an area reserved to States in their
relations with their own nationals.This protection is now incumbent upon States
in their relations with al1 persons placed under their effective authority
regardless of their nationality or legal status. Such obligations cannot be waved
on the basis of their non-respect by another State, nor be the subject of the
adoption of measures against the latter i8.
The fundamental rights of the human person, which are a guarantee of
dignity and integrity, are not related to a person's nationality or a state's
competence towards its nationals; they go beyond this relationship and involve
the international community as a whole, which provides such guarantees
through various legal and institutional mechanisms.
Thus, in the Barcelona Traction case,the Court was unequivocal in stating
that " a clear distinction must be drawn between states responsibility to the
international community as a whole and the responsibility arising towards
another state in the context of diplomaticprotection. By virtue of its nature, the
former concerns al1states. In view of the importance of the rights in question,
every state may be deemed to have a legal interest in the protection of these
rights; these responsibilities are 'ergaomnes' obligations. The Court added that
such responsibilities stem from the wrongfulness of acts of aggression and
genocide, as well as the rules andprinciples governing the fundamental rights of
the human person, including the practice of slavery and racial discrimination"i9.
These fundamental rights, such as respect for the physical and moral
integrity of the individual without regard to the means available in a particular
social context are binding on al1states and areparts ofjus conens. Therefore it is
the role ofrelevant international organizations to enforce these laws, and States
cannot hide behind their sovereign rights. This is the case regarding the right to
life, as well as the right to free choice of one's residence (Art. 12 of the
International Covenant of Civil andPolitical Rights). The Committee on Human
Rights (made up of experts chosenby the States Parties) having noted obstacles
to " the rights to liberty of movementas set forth in Art. 12" 20,urged Israel to
abide by these rights.
18. Art. 60 Para. 5 of the Vienna Convention onthe Law of Treaties &1Para. 50 of Res.
Al56183of 28 Jan, 2002 on StatesResponsibilityfor Internationally Wrongful Acts.
19. Barcelona Traction Li&htPower, Ltd., ruling renderedon 5 Feb., 1978, 1978 compendium
paras.32and 33.
20. CCPRJc179add. 93 Para. 22. Israel must therefore respect the fundamental rights of the human person
not solely under the covenants, but also, and specially, under general
international law. In this context, the construction of the wall has the legal
consequence of depriving thousands of Palestinians of their fundamental rights,
inter alia, the right to freedom of movement and the establishment of their
residence in al1areas of the occupied territories.
It follows that the encirclement of Palestinians between the wall and the
Green Line or in enclaves is a violation of Israel's international obligationsto
abide by the fundamental rights of the human person, obligations which are
binding in Jus Cogens. This violation is even more flagrant in the case of East
Jerusalem which is cut off from its immediate environment, where the wall
flanking Abu Dis bars many Palestinians from access to their homes in the Old
City, from going to see their relatives and friends, fromvisiting holy sitesorjust
engaging in their normal activities.
In conclusion, in the context of the Court's decision of 19 December
2003, the Kingdom of Morocco makes this statement to provide some
information on the legal implications of the wall which is being built by Israel.
This information relates to the right to land and the rights of individual persons
as well as to Ourcommon spiritual values.
We should assist the Court to provide the Advisory opinion requested by
the General Assembly, thus contributing to the international peace and security
for the benefit of al1the population of the Middle East region.
THEAMBASSADOR OF HIS MAJESTYTHEKING
Ali ELMHAMDI
Written Statement of the Kingdom of Morocco