2004/32 MWP
30 January 2004
Written Statement of Lebanon
[Translation]
Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory
Request for an advisory opinion submitted by the United Nations General Assembly
to the International Court of Justice
Statement of Lebanon pursuant to Article 66, paragraph 2, of the Statute of the Court
and to the Order of the Court dated 19 December 2003
1. The Government of Lebanon,
Having regard to the Order given by the Inte rnational Court of Justice on 19 December 2003
concerning the request for an advisory opinion, submitted to it by the United Nations General
Assembly in its resolution A/RES/ES-10/14 of 8 December 2003, concerning the legal
consequences of the construction of a wall in the Occupied Palestinian Territory,
Having regard to the letter of 19December 2003 from the Registrar of the Court to the
Minister for Foreign Affairs and Lebanese Expatriates, enclosing a copy of the said Order and
indicating that the Court had thereby decided that the Member States of the United Nations were
likely to be able to furnish information on all aspects raised by the question,
Has the honour to transmit herewith to the In ternational Court of Justice the following
statement.
2. By its resolution A/RES/ES-10/14 of 8 Dece mber 2003, entitled “Illegal Israeli actions in
Occupied East Jerusalem and the rest of the O ccupied Palestinian Territory”, the United Nations
General Assembly decided
*
Reissued for technical reasons.
9022bis - 2 -
“in accordance with Article96 of the Charter of the United Nations, to request the
International Court of Justice, pursuant to Article65 of the Statute of the Court, 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 th e occupied Palestinian Territory, including
in and around East Jerusalem, as described in the report of the Secretary-General
[submitted pursuant to resolution ES-10/13 of 21 October 2003], considering the rules
and principles of international law, incl uding the Fourth Geneva Convention of 1949,
and relevant Security Council and General Assembly resolutions?”
3. This statement will first address the preliminary matters of the jurisdiction of the
International Court of Justice to give such an opi nion, and the propriety of its intervention, before
going on to examine the substance of the question put to the Court.
I. The jurisdiction of the Court and the propriety of its intervention
4. Article96 of the United Nations Charter provides, in paragraph1: “1.The General
Assembly or the Security Council may request th e International Court of Justice to give an
advisory opinion on any legal question.”
Article 65 of the Statute of the International Court of Justice states:
“1. 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.
2. Questions upon which the advisory opinion of the Court is asked shall be laid
before the Court by means of a written requ est containing an exact statement of the
question upon which an opinion is requir ed, and accompanied by all documents likely
to throw light upon the question.”
5. It can be seen that the only prerequisit es laid down by those artic les for the admissibility
of such a request by a duly authorized body are that the request for an opinion should concern a
question of a legal nature and that the question should be laid before the Court by means of a
written request containing an exact statement of th e question upon which the opinion is required.
Those conditions are thus met in the present case.
There is no rule whereby any particular question should be submitted by the Security
Council rather than by the General Assembly. Simi larly, there is no rule precluding the seisin of
the Court for an advisory opinion on a question relating to a specific situation or of which the
response may have specific political, social, economi c or humanitarian implications, provided the
question is itself of a legal nature, that is to say where the response would consist of the indication
of a legal rule.
6. It is true that Article12 of the Charter stipulates in its first paragraph that “While the
Security Council is exercising in respect of any dispute or situation the functions assigned to it in
the present Charter, the General Assembly shall no t make any recommendation with regard to that
dispute or situation unless the Security Council so requests.” However, a request for an advisory
opinion is in no event covered by that clause. On the contrary, a request submitted by the General
Assembly falls within the normal exercise of its ordinary powers pursuant to Articles 10, 11 and 13
of the Charter. - 3 -
Article10 thus provides that “The Genera l Assembly may discuss any questions or any
matters within the scope of the present Charter or relating to the power s and functions of any
organs provided for in the present Charter . . .”
The question submitted to the Court is, moreove r, closely related in a number of aspects to
the activities and concerns of the General Assembly , in particular the progressive development of
international law (Art. 13, para. 1 (a)) and the realization “for all without distinction as to race, sex,
language, or religion” of “human rights and fundamental freedoms” (Art. 13, para. 1 (b)).
7. It is appropriate to refer at this point to the Court’s Advisory Opinion of 8July1996
concerning the Legality of the Threat or Use of Nuclear Weapons , in which (para.13) the Court,
for its part, refers to its Advisory Opinion of 1975 on Western Sahara (Western Sahara, Advisory
Opinion, I.C.J. Reports 1975 , p.18, para.15), where the Court stated that questions “framed in
terms of law and rais[ing] problems of international law . . . are by their very nature susceptible of a
reply based on law . . . [and] appear . . . to be questions of a legal character”.
In the present case, the Court is invited to identify the “legal consequences” of the
construction of the wall, “considering the rules a nd principles of international law”, which thus
constitutes a legal question.
8. In its above-mentioned Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, the Court stated (para. 13):
“The fact that this question also has politi cal aspects, as, in the nature of things,
is the case with so many questions which ari se in international life, does not suffice to
deprive it of its character as a ‘legal qu estion’ 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 Tribunal, Advisory Opinion ,
I.C.J. Reports 1973, p. 172, para. 14).”
The Court then added:
“Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to di scharge an essentially judicial task...
Furthermore, as the Court said in the opinion it gave in 1980 concerning the
interpretation of the agreement of 25 March 1951 between the WHO and Egypt:
‘Indeed, in situations in which political considerations are
prominent it may be particularly necessary for an international
organization to obtain an advisory opinion from the Court as to the legal
principles applicable with respect to the matter under debate . . .’ ( I.C.J.
Reports 1980, p. 87, para. 33.)
The Court moreover considers that th e political nature of the motives which
may be said to have inspired the request a nd the political implications that the opinion
given might have are of no relevance in th e establishment of its jurisdiction to give
such an opinion.”
9. We conclude from the foregoing that there are no legal grounds to preclude the Court, in
the present case, from exercising its powers under Artic le96 of the Charter and Article65 of its
Statute. - 4 -
10. With regard to the discretionary nature of the Court’s decision whether or not to give an
advisory opinion, it is appropr iate to refer to subsequent p assages from the Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons (paragraphs 14-19), where the Court states:
“Article65, paragraph1, of the Statute provides: ‘The Court may give an
advisory opinion . . .’ (Emphasis added.) This is more than an enabling provision. As
the Court has repeatedly emphasized, the Statute leaves a discretion as to whether or
not it will give an advisory opinion that has been requested of it, once it has
established its competence to do so. In this context, the Court has previously noted as
follows:
‘The Court’s Opinion is given not to the States, but to the organ
which is entitled to request it; the reply of the Court, itself an “organ of
the United Nations”, represents its pa rticipation in the activities of the
Organization, and, in principle, should not be refused.’”
11. In the present case, should the Court ab stain, on grounds of impropriety, from rendering
an advisory opinion, in spite of the jurisdiction it derives from Article65, paragraph1, of the
Charter?
During the debate which preceded the adoption by the General Assembly of
resolution A/RES/ES-10/14, certain representatives, whilst condemning the construction of the wall
by Israel, considered that the seisin of the Court would not help the efforts of the two parties to
relaunch a political dialogue or that an advisory opinion from the International Court of Justice
would not be welcome in the political context unde rlying the territorial dispute between Israel and
Palestine. On this subject, the Lebanese Government feels that it is paradoxical to consider that the
clarification of a point of law would be capable of precluding the peaceful settlement of a conflict
or that the Court should not give an opinion in a conflictual context. Quite the contrary; a
significant precedent in this respect is the ICJ’s Advisory Opinion of 21June1971 on the Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution276 (1970) . It will be recalled that, in that case, it
was contended that even if the Court had competence to give the opinion, it should nevertheless, as
a matter of judicial propriety, refuse to exercise its competence, in view of the Court’s alleged
disability to give the opinion “because of political pressure to which the Court... has been or
might be subjected”. However, the Court consid ered that it was not proper to entertain those
observations, because it “acts only on the basis of the law, independently of all outside influence or
interventions whatsoever”.
12. The principle whereby the International Court of Justice is entitled to rule even where the
parties concerned by the solution are currently negotiating, or where it is to be hoped that they will
resume suspended negotiations, is upheld by the C ourt even in the context of a contentious case
brought to it by one of the parties. By way of example, in its Judgment of 26November1984
(jurisdiction and admissibility) in the case concerning Military and Paramilitary Activities in and
against Nicaragua ( I.C.J. Reports 1984 , p.440, para.106), citing its Judgment in the case
concerning the Aegean Sea Continental Shelf ( I.C.J. Reports 1978 , p.12, para.29) the Court
confirmed that: “even the existence of active ne gotiations in which both parties might be involved
should not prevent both the Security Council and the Court from exercising their separate functions
under the Charter and the Statute of the Court”.
13. Need it be pointed out that, in the presen t case, it is precisely the construction of the
wall the subject-matter of the opinion requested that is capable of impeding the resumption
of negotiations between Israel and the Palestinians , and not the Court’s opinion? On this subject, - 5 -
the observations of the United Nations Secretar y-General, in the conclusion to his report
A/ES-10/248 are quite clear. That report rightly states (in para. 29) that the placing of most of the
wall on occupied Palestinian land could impair future negotiations.
II. The merits
A. The facts
14. It will be recalled that in its resolution ES-10/13, adopted on 21 October 2003, the United
Nations General Assembly demanded that Israel stop and reverse the construction of the wall in the
Occupied Palestinian Territory, in cluding in and around East Jerusalem, which is in departure of
the Armistice Line of 1949 and is in contradiction to relevant provisions of international law. The
resolution further requested the United Nations Secr etary-General to report periodically on Israel’s
compliance with that resolution.
15. On 24November2003 the United Nations Secretary-General presented a report
(A/ES-10/248) concluding that Israel ha d not complied with General Assembly
resolution ES-10/13.
16. In that report, the United Nations Secr etary-General indicated that the Barrier, once
completed, would stretch 720km along the West Ba nk (para.6). The part already completed,
excluding East Jerusalem, mostly runs within Palestinian territory and in certain places deviates
7.5km from the Green Line to incorporate Is raeli settlements, while encircling Palestinian
population areas. The planned route of the Barrier, once completed, will deviate up to 22km in
places from the Green Line.
17. Moreover, and according to the same report (para. 8), the route of the Barrier, as shown
on the official map published by the Israeli Ministry of Defence, deviates from the 1949 Armistice
Line (Green Line) such that some 975sq. km or 16percent of the entire West Bank will lie
between the wall and that line, separating an area in habited by 237,000 Palestinians (17,000 in the
West Bank and 220,000 in East Jerusalem). In additi on, if the planned route of the Barrier is fully
completed, another 160,000 Pal estinians will live in enclaves areas where the Barrier almost
completely encircles communities and tracts of la nd. Moreover, the planned route incorporates
320,000 settlers, including approximately 178,000 in East Jerusalem. The Barrier reaches an
average width of 50-70 m, increasing to as much as 100 m in some places. It is supplemented by
secondary barriers forming loops which encroach even deeper into Palestinian territory. Land is
regularly requisitioned. Requisition orders become effective on the date they are signed, even if
they have not been served on the owners (para. 17).
18. The report further states (paras. 19-22) that the orders given by the Israeli army prohibit
anyone from entering the zone in the north-west part of the West Bank that lies between the Barrier
and the Green Line (“Closed Area”), or from re maining there, unless otherwise authorized by
virtue of a document issued by the Israeli army. That measure affects 73sq. km, inhabited by
5,300Palestinians in 15 communities. It does not apply, however, to Israeli citizens, Israeli
permanent residents and those eligible to emigrate to Israel in accordance w ith the Law of Return;
they can move into, out of and within the Clo sed Area without a permit. Moreover, even for
authorized persons, access and regress are regulated by the schedule of operation of the access
gates. They are only open for 15minutes, three times a day. Since the inhabitants are denied
regular access to their farmlands, jobs and public services, it is to be feared that Palestinians may
be obliged to leave the region, especially as in th e past, Israel has already expropriated land for not - 6 -
being adequately cultivated, pursuant to military orders or through enforcement of legislation
specific to the West Bank inherited from the Ottoman and Jordanian régimes.
19. The construction of the Barrier has had implications for the humanitarian, social and
economic situation of the Palestinian population.
20. The Barrier is capable of deepening the fragmentation of the West Bank. The resulting
closure system consists of a series of checkpoi nts and roadblocks that severely restrict the
movement of Palestinian people and goods, causi ng serious socio-economic harm. Recent reports
by the World Bank and the United Nations show that the construction of the wall has dramatically
increased such damage in communities along its r oute, through the loss of, or severely limited
access to, land, jobs and markets. According to the Palestinian Central Bureau of Statistics, the
wall has separated 30 localities from health services, 22 from schools, eight from primary water
sources and three from electricity networks (Secretary-General’s report, para. 23).
21. Palestinians living in enclaves between th e wall and the Green Line are facing some of
the harshest consequences of the construction of the wall. For example, it surrounds the town of
Qalqiliya, with the only exit being controlled by a mi litary checkpoint. This has isolated the town
from almost all its agricultural land, while surround ing villages are separated from its markets and
services. A United Nations hospital inside the town has experienced a 40percent decrease in
caseloads. Further north, the Barrier has created an enclave around the town of Nazlat Issa, whose
commercial areas have been destroyed to make way for the construction of the Barrier ( ibid.,
para. 24).
22. The Barrier’s route through the city of Jerusalem is restricting the movements of tens of
thousands of urban Palestinians, as well as their possibility of entering the city in order to find work
there or to benefit from essential social services, notably schools and hospitals . This situation is
raising concerns about the Palestin ians’ right to work, health, edu cation and an adequate standard
of living (ibid., para. 26).
23. The Secretary-General’s report also describ es the implications that the construction of
the wall has had on agriculture and on food res ources: according to the FAO, an additional
25,000 people are now registered as recipients of food assistance (ibid., para. 25).
24. This situation will result in inadmissible harm to the living conditions of hundreds of
thousands of Palestinians, as well as in new movements of refugees and displaced persons.
25. It is of interest to note that Israel’s Defence Minister stated on 3March2003 to the
British daily The Guardian that the Israeli Government was e nvisaging a Palestinian State divided
into seven cantons centred on the main Palestinian cities, each sealed off by the Israeli army and
separated from other West Bank areas, which would become part of Israel. The construction of the
wall, as explained by the United Nations Secretary- General in his report, is capable of deepening
that fragmentation of Palestinian territory by th e creation of enclaves separated from each other,
together with the annexation by Israel of broad tr acts of Palestinian land. The construction of the
wall would thus be a means of unilaterally defining the borders of the future Palestinian State and
would represent yet another of the many examples of encroachment by Israel into the West Bank,
thus jeopardizing the viability of the future State. - 7 -
B. Norms of public international law which have been breached by the construction of the
wall
26. The entire series of actions committed by Israel, as described above, together with their
consequences and the harm they have caused and are still causing run counter to the Fourth
Geneva Convention of 12August1949, in partic ular Article27, concerning the treatment of
protected persons, Article49, prohibiting the tran sfer of populations, Article50, concerning the
care and education of children, Article52, which stipulates that “all measures aiming at creating
unemployment or at restricting the opportunities o ffered to workers in an occupied territory, in
order to induce them to work fo r the occupying Power, are prohibited”, Article 53, prohibiting any
destruction of real or personal property, Article 55, laying down the duty of the occupying Power to
ensure food and medical supplies for the population of occupied territories, Article 56, concerning
the maintaining of medical and hospital establishments and services, and Article 59, concerning the
provision of relief consignments to the population of occupied territories.
27. On numerous occasions, Israel has presented objections to the applicability of the Fourth
Geneva Convention to the Occupi ed Palestinian Territory and to Jerusalem. The United Nations
General Assembly, however, has on numerous occasi ons affirmed that applicability, including in
resolution A/RES/ES-10/14 itself.
28. It should also be recalled, as mentioned in resolution A/RES/ES-10/14, that a Conference
of High Contracting Parties to the Fourth Gene va Convention was convened on 15July1999 to
discuss measures to enforce the Convention in the Occupied Palestinian Territory, including
Jerusalem, and that the Conference was reconve ned at Geneva on 5December2001, when a
declaration was adopted.
29. At the first United Nations Conference on measures to enforce the Convention in the
Occupied Palestinian Territory, including Jerusal em, held at Cairo on 14and 15July1999, the
participants had already emphasized the universal character of the Geneva Conventions and the fact
that their provisions had always been accepted as norms of customary international law (final
document, para. 2).
30. The Lebanese Government considers that the construction and maintaining of the wall
constitute a violation of general principles of law, which are simply restated by the Fourth Geneva
Convention, and in particular, to use the words of the International Court of Justice in its decision
in the Corfu Channel case (United Kingdom v. Albania, I.C.J. Reports 1948), “certain general and
well recognized principles, namely: elementary considerations of humanity, even more exacting in
peace than in war”.
31. The provisions of the Fourth Geneva Conven tion must not be interpreted to the letter or
restrictively, but as a restatement of general principles of law, whose validity is on a par with that
of treaty provisions, albeit more general in scope, and should ther efore be regarded as applying to
the current situation involving Israel and the Occupied Palestinian Territory.
32. It is of interest to note in this respect that the International Court of Justice, in its
27 June 1986 Judgment on the merits of the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) (I.C.J. Reports 1986 , pp.96-97,
para.181), described as follows the coexistence between non-conventional rules and written rules
which, in that case, were contained in the United Nations Charter: - 8 -
“However, so far from having constituted a marked departure from a customary
international law which still exists unmodi fied, the Charter gave expression in this
field to principles already present in customar y international law, and that law has in
the subsequent four decades developed under th e influence of the Charter, to such an
extent that a number of rules contained in the Charter have acquired a status
independent of it.”
33. The independence of non-conventional norms, such as the “basic general principles of
humanitarian law”, in relation to written instru ments, is affirmed in the same Judgment
(Nicaragua v. United States of America, p. 114, para. 220), where the Court states that the Geneva
Conventions merely give “specific expression” to those principles.
34. It hardly matters that Israel and the Occupied Palestinian Territory are not “High
Contracting Parties” to the Geneva Conventions, since those Conventions are not confined to
establishing reciprocal benefits for the signatory States alone, but embody humanitarian principles
which are valid erga omnes.
35. The same principle of interpretation in the light of custom or of underlying general
principles should be adopted with respect to al l the instruments referr ed to in resolution
A/RES/ES-10/14 itself, in particular the Regulati ons annexed to the Hague Convention respecting
the Laws and Customs of War on Land of 1907.
36. The construction of the wall is contrary to the principle of the development of “friendly
relations among nations based on respect for the pr inciple of equal rights and self-determination of
peoples”, a principle set forth in Article 1 of the United Nations Charter, just as it also runs counter
to the spirit of United Nations General Asse mbly resolution 2625 of 24October 1970, entitled
“Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations”. The fact that those
instruments were initially intended to govern re lations between sovereign States and that the
Occupied Palestinian Territory does not yet fit into that category, must not disallow the principles
embodied in those provisions.
37. The construction of the wall and its c onsequences, including the humiliation suffered by
the inhabitants concerned, also constitute violations of the Universal Declaration of Human Rights,
in particular Article1, enshrining the dignity of human beings, Article13, concerning freedom of
movement and residence, Article17, paragraph 2, providing that no one shall be arbitrarily
deprived of his property, and Article26 concerning the right to education; those actions also
violate the International Covenant on Civil and Po litical Rights, in particular Article1 (right of
self-determination), Article 12 (liberty of movement), Article 24 (protection of children), as well as
the International Covenant on Econom ic, Social and Cultural Rights, in particular Article 11 (right
to an adequate standard of living, right to be free from hunger), Article12 (right to health) and
Article13 (right to education). All those instru ments, construed to the letter, were admittedly
intended at the outset to govern relations between the authorities of a State and persons or groups
on the territory of that State, but the fact that they now embody unquestionable universal values,
which are valid in all places, means that they apply mutatis mutandis to the situation in issue.
38. The construction of the wall and the resulting situation correspond to a number of the
constituent acts of the crime of apartheid, as en umerated in Article2 of the International
Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General - 9 -
Assembly on 30 November 1973: that is to say, the denial of the liberty and dignity of a group, the
deliberate imposition on a group of living conditions calculated to cause its physical destruction in
whole or in part, measures calculated to deprive a group of the right to work, the right to education
and the right to freedom of movement and reside nce, the creation of ghettos, the expropriation of
property, etc. Such actions constitute measures of collective punishment.
39. The construction of the wall on the Occupi ed Palestinian Territory is contrary to
resolution 181 (II) of 29 November 1947, providing for the termination of the Mandate and the
partition of Palestine into Arab and Jewish States.
40. It is also at odds with Security Council resolutions 242 (1967) and 338 (1973) and
constitutes a violation of the principle, recognized in international law, of the inadmissibility of the
acquisition of territory by force.
41. The construction of the wall constitutes a violation of Security Council
resolutions 1397 (2002) and 1515 (2003).
42. It runs counter to the United Nations resolu tions in which it is affirmed that the actions
taken by Israel, as the occupying Power, to change the status and demographic composition of East
Jerusalem, have no legal validity and are null and void.
43. It is contrary to United Nations General Assembly resolution ES-10/13 of
21October2003, which demanded that Israel stop a nd reverse the construction of the wall in the
Occupied Palestinian Territory, in cluding in and around East Jerusalem, which is in departure of
the Armistice Line of 1949.
44. In various statements, Israel has claimed that the construction of the wall is consistent
with the right of self-defence affo rded to States by Article51 of the United Nations Charter.
However, in the spirit of Article51, the exercise of that right may only consist of immediate and
instantaneous measures pending the exercise by the Security Council of its authority and
responsibility under the Charter in order to maintain or restore peace. Moreover, the actions that
the construction of the wall is intended to prev ent are not consonant with the definition of
aggression as given in resolutio n3314, adopted by the Genera l Assembly on 14December1974,
without forgetting that the Israeli settlements in th e Occupied Palestinian Territory, including East
Jerusalem, which certain parts of the separation wall are designed to protect, have already been
condemned by a number of United Nations resoluti ons declaring them illegal. Lastly, security
requirements do not explain why the wall has been bu ilt on the other side of the Green Line within
the Occupied Palestinian Territory.
C. The legal consequences of the construction of the wall
45. What, then, are the legal consequences of the construction of the wall?
46. First, Israel must put an end to the wr ongful act it is committing by building the wall; it
must discontinue the construction and demolish the sections already built, both the concrete part
and the various fences, barriers or ditches designed for the same purpose. - 10 -
47. Israel must then annul any land requisiti ons that have been ordered for the purposes of
building the wall and developing an area around it, and must restore the status quo that existed
prior to the construction of the wall.
48. Lastly, Israel must compensate those persons who have suffered from the construction of
the wall.
On behalf of the Lebanese Government,
The Minister for Foreign Affairs
and Lebanese Expatriates
(Signed) JeanO BEID .
___________
Written Statement of Lebanon [translation]