Monday, February 23, 2004
Hearing on the legality of the wall Israel is building inside the West Bank
Introductory Statement
1. Mr. President, Members of the Court, it is my honour to address you on
behalf of Palestine. I wish to thank the International Court of Justice for
granting Palestine the opportunity to participate in these advisory
proceedings on the “Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory”.
2. I stand before you as a representative of the Palestinian people, the
indigenous people of the land, who for too long have been denied the right to
self-determination and sovereignty over their land and half of whom remain
refugees. The Palestinian people have been subject to a military occupation
for almost 37 years. They have been dehumanized and demonized, humiliated and
demeaned, dispossessed and dispersed, and brutally punished by their occupier.
The occupation has systematically denied them their basic rights and freedoms
and has controlled almost every single aspect of their lives.
3. This case, however, is not about the whole of the Israeli-Palestinian
conflict ¾ it is about the Wall. This Wall is being constructed almost
entirely in the Occupied Palestinian Territory. This Wall is not about
security: it is about entrenching the occupation and the de facto annexation
of large areas of Palestinian land. This Wall, if completed, will leave the
Palestinian people with only half of the West Bank within isolated,
non-contiguous, walled enclaves. It will render the two-State solution to the
Israeli-Palestinian conflict practically impossible.
4. The Wall is not just a physical structure; it is a whole régime. It
encircles entire communities in walled enclaves and, if completed, will
wall-in most of the Palestinian population. It is already causing the
displacement of Palestinian civilians and has imprisoned thousands of
Palestinians between it and the Armistice Line of 1949, the Green Line. There
is, moreover, without a doubt, a correlation between the route of the Wall and
the illegal Israeli settlements in the
Occupied Palestinian Territory and the water resources in the area.
5. There is also, of course, a correlation between the route of the Wall and
Israel’s long-standing illegal policies and practices with regard to
Jerusalem. East Jerusalem is occupied territory. The international community
has never recognized Israel’s illegal annexation of East Jerusalem. The
route of the Wall will clearly entrench this annexation. It will compound the
- 19 - humanitarian hardships being faced by the Palestinian inhabitants of
the city. Moreover, it will isolate the city from the rest of the Palestinian
population, obstructing their access to the city and its Holy Places.
6. We are here because the United Nations has a permanent responsibility ¾
legally, politically and morally ¾ for the question of Palestine until the
question is resolved in all its aspects. The General Assembly has reaffirmed
this in at least 25 resolutions. It is, after all, the General Assembly that,
in accordance with the Charter of the United Nations, dealt with mandated
Palestine, deciding on 29 November 1947, in resolution 181 (II), to partition
Palestine into two States, one Jewish and one Arab. The Arab State has, of
course, not yet been realized; and thus the Palestinian people have been
unable to exercise their right to self-determination. Indeed, Palestine is
still not a Member State of the United Nations, but remains an observer. Since
1947, however, the General Assembly has never ceased dealing with the question
of Palestine or its aspects.
7. The Security Council has also continuously dealt with the question of
Palestine. It first placed the “Situation in Palestine” on its agenda in
1948. The Council’s attention to the matter increased after the Israeli
occupation in 1967. Since then, the Council has adopted 38 resolutions
addressing the situation in the Occupied Palestinian Territory, 26 of which
recall the Fourth Geneva Convention, including its applicability to the
territories occupied by Israel since 1967, including Jerusalem.
8. These resolutions, of course, remain valid. Israel has complied with almost
none of them. The Council has, historically, failed in its responsibility for
the maintenance of international peace and security in the case of Palestine.
It has failed to follow up the implementation of its own resolutions and take
the necessary measures to ensure compliance, and has failed to prevent the
continuous and, at times, massive violations of international law and of the
Charter itself. The basic reason has been the use, or the threat of use, of
veto by one of the Council’s Permanent Members. In the 30 years between 1973
and 2003, 27 vetoes have been cast on the Palestinian issue. The most recent
was cast on 14 October 2003, when the issue of the construction of the Wall in
the Occupied Palestinian Territory was brought before the Council and it
failed to act.
9. Over the years, in light of the Council’s inaction, the General Assembly
has tried to discharge its own responsibilities in line with General Assembly
resolution 377 (V) of 1950. Four - 20 - of its ten emergency special sessions
have been on Palestine and the Middle East situation. In reaction to the last
veto, the tenth emergency special session was resumed to consider the
situation. Like the Security Council, the Assembly conducted a serious debate
on the issue and two draft resolutions were submitted. One requested the
International Court of Justice to issue an advisory opinion on the Wall. After
intensive consultation and negotiations, however, the Members of the European
Union introduced a draft resolution, with the understanding that the
co-sponsors of the original two drafts would not insist on a vote on those
drafts. The European Union co-sponsored draft resolution was adopted by an
overwhelming majority, on 21 October 2003, as resolution ES-10/13.
10. Three specific elements of that resolution should be highlighted: First,
it demanded “that Israel stop and reverse the construction of the wall in
the Occupied Palestinian Territory, including 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”. Second, it requested the
Secretary-General to report on compliance. And, third, it expressly stated
that upon receipt of the first report “further actions should be considered,
if necessary, within the United Nations system”.
The wording of that third element reflected a compromise on the means of
following up the issue, including the possibility of a request for an advisory
opinion from this Court on the legal consequences in case of non-compliance.
The phrase could not have meant anything other than a reference to the Court,
and, regardless of the claim made in one Written Statement1 of a different
understanding, it is indisputable that the idea for requesting an advisory
opinion was widely discussed and debated.
11. Following the resolution’s adoption, Israel not only continued but
accelerated its construction of the Wall on Palestinian territory. The
Secretary-General, pursuant to the resolution, presented a report containing a
clear factual presentation about the Wall. It concluded that “Israel is not
in compliance with the Assembly’s demand that it stop and reverse the
construction of the wall in the Occupied Palestinian Territory”2.
Accordingly, the emergency special session resumed again on 8 December 2003,
and adopted by a large majority resolution ES-10/14 requesting this
1Written Statement of the United Kingdom of Great Britain and Northern Ireland.
2A/ES-10/248.
- 21 -
Court to urgently render an advisory opinion on the legal consequences arising
from Israel’s construction of the Wall.
12. Mr. President, Members of the Court, Israel’s Written Statement to the
Court claims that it does not deal with the merits of the case. We beg to
differ. The Israeli statement is rife with attempts to justify the
construction of the Wall through the presentation of a detailed case on terror
attacks and through political arguments, including on the Road Map. Israel
repeatedly refers to the Road Map and to Security Council resolution 1515
(2003). This is ironic. The Government of Israel has never wanted this Road
Map, it has never wanted the Security Council’s endorsement of it and has
repeatedly caused the delay of both. After the Road Map was formally presented
in April 2003, the Israeli Government would not say that it accepted the Road
Map itself but only what it called “the steps set out in the Roadmap”.
Even then, in accordance with the Israeli
Cabinet Statement of 25 May 2003, 14 reservations were attached to it.
13. Israel later vehemently objected to the Russian Federation initiative to
bring the Road Map to the Security Council for endorsement. When Security
Council resolution 1515 (2003) was finally adopted on 19 November 2003, the
Council held no debate. This was due to Israel’s opposition. Then, on 17
December 2003, Israel undermined the traditional consensus on a General
Assembly resolution on “Assistance to the Palestinian People” specifically
because the European Union, co-sponsoring the resolution, added a paragraph
welcoming the endorsement by the Council of the Road Map in resolution 1515.
Israel made its adherence to consensus on that resolution conditional upon the
removal of the reference to resolution 1515, which did not occur.
14. Mr. President, Members of the Court, there has been no shortage of peace
initiatives on the Middle East and the Israeli-Palestinian conflict. Yet,
since the adoption of Security Council resolution 242 (1967), and throughout
every one of the subsequent initiatives, Israel has simultaneously been
engaged in the intensive colonization of our land. It has transferred 400,000
illegal settlers to the Occupied Palestinian Territory, including East
Jerusalem. It is continuously attempting to change the status, physical
character, nature and demographic composition of that territory, most recently
through its construction of the Wall. Actually, since the signing in 1993 of
the Declaration of Principles between the Government of Israel and the
Palestine Liberation Organization, Israel not only continued its illegal
settlement activities and expansion but actually - 22 - doubled the number of
its settlers in the Occupied Palestinian Territory, including East Jerusalem.
Doubled. How can it be expected that the Palestinian people would continue to
believe that peace was imminent under such circumstances?
15. The Road Map could be different; and we hope that it will be. It is rooted
in the principles of resolution 242 (1967) and in the vision affirmed by the
Security Council in resolution 1397 (2002) of “a region where two States,
Israel and Palestine, live side by side within secure and recognized borders”.
This initiative deserves a chance ¾ we want it to succeed. But Israel cannot
once again be permitted to continue its ceaseless taking of Palestinian
property and rights, under the cover of the peace process or the semblance of
a peace initiative. The legal rights of the Palestinian people cannot simply
be ignored or suspended whenever there is a peace process under way. That
plays into the hands of extremists on both sides. One of our chief hopes is
that the Court will make it clear that the Palestinian people have rights and
that international law is not irrelevant to the situation in the Occupied
Palestinian Territory.
16. There is near unanimity among the States in the world that building this
Wall is unacceptable. The overwhelming majority of Member States believe that
it is in contradiction to international law. The same overwhelming majority
believes, as one group, the European Union, has officially declared, that the
Wall renders “the two-State solution physically impossible”. Saving the
Road Map thus and the prospects for peace requires a cessation of the
construction of this Wall, its removal and non-recognition by States of any of
its consequences.
17. With regard to the Quartet, it has expressed its concerns about the Wall.
Moreover, despite the implication in one Statement to the Court3 that the
members of the Quartet are in agreement that an advisory opinion would likely
hinder the peace process, it should be clarified that there is no agreement
among the Quartet with regard to asking the Court not to render the requested
advisory opinion. The Statement of the Russian Federation does not ask the
Court to refuse to give an opinion. The Statement of the United Nations does
not do so. Nor does the European Union Statement. Ireland’s Minister for
Foreign Affairs affirmed this in the Irish Senate on 4 February 2004, stating
that “Contrary to some press reports, the EU has not asked the ICJ to
refrain from issuing an Advisory Opinion. There would have been no consensus
to adopt such a
3Written Statement of the United Kingdom of Great Britain and Northern Ireland.
- 23 - position.”4 Indeed, we even doubt whether the Statement of the United
States could be characterized as such.
18. Some States have said that an advisory opinion could harm the final status
issues that should be left to the parties for negotiation. It is clearly
Israeli actions in the Occupied Palestinian Territory, and not any Court
opinion, that will constitute illegal facts on the ground in relation to final
status issues. Nevertheless, we do agree that the Court is not being asked to
advise on solutions for the final status, although it will undoubtedly be
necessary to make some reference to final status issues due to the intricate
relationship between the Wall and the settlements and the character and route
of the Wall in and around East Jerusalem.
19. Mr. President, Members of the Court, I wish now to address the issue of
the suicide bombings, the security situation and Israel’s policies and
practices in the Occupied Palestinian Territory. Israel claims that the
construction of the Wall is a temporary defensive measure to prevent suicide
bombings and provide security for Israel. This is not true, and the proof is
simple. If this were in fact the case, then Israel would have constructed the
Wall on its territory along the Armistice Line of 1949 and not in departure of
the Armistice Line and almost entirely in the Occupied Palestinian Territory.
If Israel wanted a Wall for security, it could construct it on its territory
and raise it to 80 m rather than 8 m if it wished. This would not bode well
for mutual coexistence of course, but no one would challenge its legality in
principle.
20. The suicide bombings have led to the death of 438 Israelis in Israel. Four
hundred and ninety Israelis, mostly soldiers and settlers, have also been
killed by other kinds of violence. In contrast, since September 2000 and as of
18 February 2004, the Israeli occupying forces have directly killed, including
many by extrajudicial execution, a total of 2,770 Palestinian civilians,
including children, women and men. Of those killed, more than 1,200
Palestinians have been killed by the Israeli occupying forces in the Gaza
Strip, even though Israel has already built another kind of wall surrounding
the Gaza Strip. The question that must be asked is: how then will this Wall
being built by Israel solve the security problem? If anything, its route and
the illegal measures entailed in its construction ensure that it will actually
exacerbate the security situation. It is more than obvious that when you
deprive an entire people of their rights, expropriate their land
4Statement to Senate of Ireland, 4 February 2004; European Union Presidency (January–June
2004).- 24 - and property and wall them into enclaves and ghettos, you are not
solving the security problem but creating an untenable situation that will
combust.
21. At this time, I wish to make our position vis-à-vis the suicide bombings
very clear. We have consistently, repeatedly and unequivocally condemned these
bombings. We condemn any violence directed at civilians in this conflict,
whether Israeli or Palestinian. We consider the suicide bombings to be
unlawful. They are also harmful to the just and honourable cause of the
Palestinian people.
22. That said, I draw attention to the fact that the first suicide bombing
occurred nearly 27 years after the onset of this oppressive military
occupation of the Palestinian people. This phenomenon is the result of Israeli
policies and measures, including the relentless colonization of our land. It
is not the cause of those policies and measures. It is also imperative that a
distinction be made between such unlawful acts of violence against Israeli
civilians in Israel and acts of Palestinian resistance to the Israeli
occupation and to military attacks by the occupying forces, consistent with
international law. Nevertheless, Palestine reaffirms its commitment to a
peaceful, negotiated solution to end this occupation and end this conflict.
23. There is a humanitarian crisis in the Occupied Palestinian Territory.
Serious violations and grave breaches of international humanitarian and human
rights law are being committed. The Wall, part and parcel of these violations
and breaches, is severely exacerbating this situation. How can the Road Map
truly succeed under such circumstances? It cannot. How can Israel expect the
Palestinian side to be able to act effectively when it has destroyed
Palestinian security capabilities and has confined the leader of the
Palestinian people and elected President of the Palestinian Authority, Yasser
Arafat, for more than two years, undermining the leadership’s ability to
properly function? It cannot. How can Israel’s construction of this Wall and
its continued confiscation and colonization of the Palestinian land lead to
peace and security for both peoples? It cannot.
24. The colonization by Israel of the Palestinian land under its occupation
and the attempts to change its legal status are not new phenomena. What is
new, however, is the magnitude of Israel’s attempt to change the legal
status and to effect the de facto annexation of large parts of the Occupied
Territory by means of the Wall. The Wall will be the culmination of all
previous illegal measures and practices carried out by Israel since 1967
towards that end. It will destroy the hopes - 25 - of the Palestinian people
for the realization of their inalienable rights, including the right to
self-determination, and destroy their faith in the rule of international law
and the international community’s ability to uphold it in the face of such
grievous violations. It will destroy the hopes of the international community
for implementation of the Road Map and the “two-State” solution of Israel
and Palestine, both living side by side within secure and recognized
boundaries. Such a lamentable outcome must be avoided at all costs.
25. Mr. President, Members of the Court, on behalf of Palestine, the
Palestinian people and their leadership, I respectfully request the Court to
give full consideration to the gravity of this situation and to the importance
of an advisory opinion at this critical moment. In your most recent address
before the General Assembly, Mr. President, you underlined the role of the
Court as the “guardian of international law” and you assured the Assembly
“that the Court will pursue its efforts to respond to the hopes placed in it”.
The Palestinian people have great hopes for this proceeding and have full
confidence that the Court will help the General Assembly to carry out its
functions by rendering the advisory opinion. This would allow the Assembly to
make its own substantial contribution in response to Israel’s continued
construction of the Wall and the ensuing threats to the prospects for peace
between the two peoples. It is our firm belief that such an advisory opinion
can lead to positive developments and perhaps even a chain of events similar
to that resulting from the Court’s Advisory Opinion on Namibia.
26. Mr. President, Members of the Court, our delegation now wishes to make a
brief factual presentation of what we believe to be the minimum necessary to
help clarify the legal submissions that will follow. It will be made by Ms
Stephanie Koury. She will be followed by Professor James Crawford, who will
address the question of admissibility of the request. He will be followed by
Professor Georges Abi-Saab, addressing the question of the application of
international humanitarian law and international human rights law in the
Occupied Palestinian Territory, and then by Professor Vaughan Lowe, who will
speak on the violations of those laws.
Our submissions will be closed by Professor Jean Salmon, who will speak on the
relation between the Road Map and the right of self-determination and on the
legal consequences of the Wall.
Thank you, Mr. President. Thank you, Members of the Court.
