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International Court of Justice Advisory Opinion Proceedings On Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Palestine Written Statement (30 January 2004) And Oral Pleading (23 February 2004) Preface 1. In October of 2003, increasing concern about the construction by Israel, the occupying Power, of a Wall in the Occupied Palestinian Territory, including East Jerusalem, in departure from the Armistice Line of 1949 (the Green Line) and deep into Palestinian territory, brought the issue to the forefront of attention and debate at the United Nations. The Wall, as it has been built by the occupying Power, has been rapidly expanding as a regime composed of a complex physical structure as well as practical, administrative and other measures, involving, inter alia, the confiscation of land, the destruction of property and countless other violations of international law and the human rights of the civilian population. Israel’s continued and aggressive construction of the Wall prompted Palestine, the Arab Group, the Non-Aligned Movement (NAM) and the Organization of the Islamic Conference (OIC) to convey letters to the President of the United Nations Security Council in October of 2003, requesting an urgent meeting of the Council to consider the grave violations and breaches of international law being committed by Israel. 2. The Security Council convened to deliberate the matter on 14 October 2003. A draft resolution was presented to the Council, which would have simply reaffirmed, inter alia, the principle of the inadmissibility of the acquisition of territory by force and would have decided that the “construction by Israel, the occupying Power, of a wall in the Occupied Territories departing from the armistice line of 1949 is illegal under relevant provisions of international law and must be ceased and reversed”. 3. During the debate that was held, 44 representatives addressed the Council on the matter. The overwhelming majority of representatives expressed their opposition to Israel’s construction of the Wall in the Occupied Palestinian Territory and expressed their concern about the violations of international law, including of the Fourth Geneva Convention, being committed by Israel through its construction of the Wall and about the humanitarian hardships being imposed on the Palestinian people. Many asserted that the Wall would present a major obstacle to the implementation of the Quartet Road Map and the two-State solution to the Israeli-Palestinian conflict. 4. However, when the draft resolution was presented to the members of the Security Council for a vote on the evening of 14 October 2003, it was not adopted due to a veto cast by the United States, a permanent member of the Council. The result of the vote on draft resolution S/2003/980 was 10 in favor (Angola, Chile, China, France, Guinea, Mexico, Pakistan, Russian Federation, Spain, Syria), 1 against (United States of America) and 4 (Bulgaria, Cameroon, Germany, United Kingdom) abstentions. Thus, the Security Council failed to act when the issue of the construction of the Wall in the Occupied Palestinian Territory was brought before it. 5. In light of these developments, the tenth emergency special session was resumed on 21 October 2003 to consider the situation in line with the General Assembly’s “Uniting for Peace” resolution, namely resolution 377 (V) of 1950, which resolved that if the Council “fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, a breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations for collective measures…”. 6. The General Assembly also conducted a serious and constructive debate on the issue and two draft resolutions were submitted for consideration, including one that would have requested the International Court of Justice (ICJ) to issue an advisory opinion on the Wall. After intense negotiations and wide consultations, including with the European Union, the members of the EU introduced a new draft resolution, with the understanding that the cosponsors of the original two drafts would not insist on a vote on those drafts. The EU- cosponsored draft resolution was adopted on 21 October 2003 as resolution ES- 10/13 by an overwhelming majority of 144 in favor, 4 against and 12 abstentions. 7. Three specific elements are important to highlight with regard to resolution ES-10/13. The first is that the resolution 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 with the resolution, and, third, it made clear that upon receipt of the Secretary-General’s 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 the ICJ on the legal consequences in case of non-compliance. 8. Israel responded to resolution ES-10/13 with its usual blatant contempt and disregard. Immediately following the resolution’s adoption, Israeli officials defiantly declared that it was Israel’s intention to continue constructing the Wall. Indeed, Israel continued and actually accelerated the construction of the Wall in the Occupied Palestinian Territory. In addition, the occupying Power continued to commit countless other violations of international law in an effort to institute and sustain the regime of the Wall. It continued to confiscate and destroy even more Palestinian land, to destroy more Palestinian property, and to impose severe restrictions on the freedom of movement of persons and goods in the area, including by imposing a permit system requiring Palestinian inhabitants of the area to apply for permission to remain in their homes or work their land. By this time, entire Palestinian communities were being encircled in walled enclaves, hundreds of Palestinian civilians were being displaced, and thousands of Palestinians were being imprisoned between the Wall and the Armistice Line of 1949 (Green Line) and isolated and separated from each other and from their jobs, schools, hospitals, farmlands and markets. Moreover, it had become starkly evident that there was II an undeniable and intricate correlation between the route of the Wall and the illegal Israeli settlements in the Occupied Palestinian Territory and the water resources in the area as well as between the route of the Wall and Israel’s longstanding illegal policies and practices with regard to Occupied East Jerusalem. 9. Pursuant to resolution ES-10/13, the Secretary-General presented a report (A/ES-10/248) on 24 November 2003, which contained a factual presentation on the Wall as well as the conclusion 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”. Accordingly, the tenth emergency special session was resumed on 8 December 2003 to consider the findings in the Secretary-General’s report and to consider a draft resolution that was presented to follow up the issue by means of taking further action within the United Nations system. During that resumed session on 8 December, the Assembly adopted resolution ES-10/14 by a large majority of 90 votes in favor, 8 against and 74 abstentions. Resolution ES-10/14 requested the ICJ 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, and relevant Security Council and General Assembly?” 10. The day after the adoption of resolution ES-10/14, the Secretary-General conveyed to the ICJ a letter informing it of the Assembly’s request and transmitting the text of the adopted resolution. The Secretary-General then proceeded, as required, to prepare the dossier of documents relevant to the matter to be brought before the Court. 11. On 19 December 2003, the ICJ issued an order inviting the United Nations and its Member States to furnish information on all aspects raised by the question submitted to the Court for advisory opinion. Further, the Court decided that, “taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion, Palestine may also submit to the Court a written statement on the question”. The Court fixed 30 January 2004 as the deadline for the submission of written statements on the question and fixed 23 February 2004 as the date for the opening of hearings during which oral statements could be presented to the Court by the United Nations, its Member States and Palestine, regardless of whether or not they had submitted written statements. Following requests made to the Court respectively by the League of Arab States and the Organization of the Islamic Conference (OIC) to participate in the advisory proceedings, the Court conveyed letters also authorizing the League of Arab States and the OIC to participate in both the written and the oral phases of the proceedings. III 1 12. By the 30 January 2004 deadline, 49 participants presented written statements to the Court. This number of participants included the United Nations, which submitted an updated report of the Secretary-General on the Wall in the form of a written statement.
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