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International Court of Justice 3 0 .I a = Filed in the Registry on : 7 Cour internationale de Justice Enregistré au Greffe le : International Court of Justice 3 0 .i A = Filed in the Registry on : 7 6 Shvat 5764 29 January 2004 Sir, In accordance with the Court's Order of 19 December 2003, and Article 66, paragraph 2, of Statute of the Court, 1 have the honour to transmit to you the enclosed Written Statement of the Government of the State of Israel. The statement sets out detailed objections to the jurisdiction of the Court in this matter and the propriety of the Court responding to the request. As an element relevant to the Court's discretion under Article 65(1) of the Statute, the statement also details the on- going terrorist threat faced by Israel from Palestinian terrorism directed at Israeli civilians. As final arrangements are being made to transmit this document to you - and as these words are being written - news has just broken of yet another terrorist atrocity on a public bus in Jerusalem only a few kilometers from this office. In these first few minutes, the news is that ten people have been killed and a further 45 injured. It seems likely that the numbers of dead and injured will increase in the next hours as the news becomes clearer. The television images of the scene are deeply distressing. Israel has been the target of these kinds of murderous attacks from Palestinian elements, unhindered by those exercising executive responsibility, for the past 40 months of violence and beyond. Israeli civilians are literally being slaughtered - on buses as they go about their daily lives, in their homes, in restaurants and elsewhere - by those who operate from under the protective umbrella of "Palestine". Nothing is being done by those in positions of responsibility in "Palestine" to bring these attacks to an end. On the contrary, there is compelling evidence of official Palestinian engagement with those who perpetrate these attacks. Mr. Philippe Couvreur Registrar International Court of Justice Peace Palace The Hague, The Netherlands It is inconceivable to the Government of Israel that a court of law, seized of a request for an opinion on Israel's actions in constructing the fence - a non-violent measure designed to prevent precisely the kind of attack that we are at this very moment witnessing - could think it proper to enter into the question in isolation from consideration of the carnage that is being visited on Israeli civilians by its principal interlocutor before the Court in these proceedings. Yet the resolution of the loth Emergency Special Session of the General Assembly requesting the advisory opinion is absolutely silent on the matter. It is a travesty, and reflects the gravest prejudice and imbalance within the requesting organ. Israel trusts and expects that the Court will look beyond the request to the wider issues relevant to this matter. There are compelling reasons why the Court should refuse to become engaged in this matter. 1 would be grateful if you would bring this letter expressly to the attention of the Members of the Court and treat it as an integral part of Israel's statement for purposes of transmission to other interested parties. Please be assured, Sir, of my highest considerations. Alan Baker Ambassador Deputy Director General and Legal Adviser International Court of Justice Request for an Advisory Opinion frorn the lothEmergency Special Session of the United Nations General Assembly on "the legal consequences arising from the construction of the wall being built by Israel" Written Statement of the Government of Israel on Jurisdiction and Propriety 30 January 2004 Israel's right to defend its citizens from attack. Yet it is the PLO, through Fatah, the Al-Aqsa Martyrs' Brigades and its wider authority in the West Bank and Gaza, that is behind many of the most murderous attacks directed at Israeli civilians. In the most recent of these, on 14 January 2004, a young woman from Gaza, pleading illness and a prosthetic limb, managed to evade Israeli security to detonate her bomb to cause maximum casualties. Four lsraelis were killed in that blast. The Al-Aqsa Martyrs' Brigades, closely associated with Yasser Arafat's Fatah party, was involved in the attack. 0.4 These acts of terrorism violate al1 established rules of customary and conventional international law. Yet responsibility for and the legal consequences of these attacks are not part of the request for an opinion from the Court. Those most responsible for the attacks are effectively given free rein in the proceedings. There is a travesty of imbalance in the exercise in which the Court is now engaged. 0.5 Israel's written statement addresses the jurisdiction of the Court and the propriety of any response by it on the substance of the request. It does not address the legality of the fence, legal consequences that flow from it or other matters pertaining to the question of substance presented to the Court. Israel considers that the Court does not have jurisdiction to entertain the request and that, even were it to have jurisdiction, it should not respond to the requested opinion. 0.6 The request for an opinion is ultra vires the competence of the 1othEmergency Special Session of the General Assembly by reference to the very rules by which the session was convened. Under the Uniting for Peace Resolution, the Emergency Special Session is only competent to act in circumstances in which the Security Council has failed to do so on the matter in question. Yet the Security Council did act, adopting, by unanimous vote, resolution 1515 (2003) endorsing the Quartet CO-sponsored Roadmap just 19 days before the request for an advisory opinion was made. Moreover, any opinion from the Court on the substance of the request will without doubt upset the balance of the Roadmap and make any meaningful resumption of negotiations more difficult to achieve. 0.7 The Court has a discretion whether to give the requested opinion. In the past, it has emphasised that it would refrain from giving an opinion when to do so would be incompatible with its judicial functions. This is just such a case. "Palestine" does not come to the Court with clean hands. The process is tainted. It is an abuse of the advisory opinion procedure. The question is unbalanced. The Security Council has acted to different effect. And any response on the substance of the request would undoubtedly cut across the Roadmap initiative. In Israel's submission, the Court should decline to give a response on the requested opinion. TABLE OF CONTENTS Page PART ONE: PRELIMINARY MATTERS ............................................. CHAPTER 1 : INTRODUCTION ............................................................................... CHAPTER 2: ISSUES OF FAIRNESS AND NATURAL JUSTICE .................. A . The Title Given to the Case .......................................................... B . The Fixing of Time-Limits ........................................................... C . The Participation of "Palestine" in the Proceedings .............................. D. The Application of Article 17(2) of the Statute .................................... E . The Secretary-General's Report and the Secretariat's Dossier .................. CHAPTER 3: ESSENTIAL CONTEXTUAL MATERIAL .............................. A. The Relevance of Context ............................................................ B . The Israeli-Palestinian Conflict and Attempts to Find a Settlement ............ (i) Initiatives Within the United Nations ...................................... (ii) The Madrid Process .......................................................... (iii) Exchange of Letters Between the Prime Minister of Israel and the Chairman of the PLO. 9 - 10 September 1993 ........................... (iv) Declaration of Principles on Interim Self-Government Arrangements. 13 September 1993 ........................................................... (v) Israel - PL0 Agreements and Undertakings. 1994 - 1999 ............. (vi) The Mitchell Committee Report ............................................ (vii) The Roadmap and Related Developments ................................. (a) Background Issues and the Involvement of the United Nations Security Council .......................................... (b) The Roadmap and Security Council Resolution 1515 (2003) .. (c) Subsequent Developments in the 10" Emergency Special Session ................................................................ C . Borders. Jerusalem and Settlements Under the Israeli-PL0 Agreements and the Roadmap ........................................................................ D . The Palestinian Terrorist Threat to Israel ......................................... (i) The Perpetrators of Terror ................................................ (ii) The Methods and Means of Terror and its Victims ................... (iii) The Threat of "Mega-Terror" Attacks .................................. (iv) The Responsibility of "Palestine" for Palestinian Terrorism ......... PART TWO: OBJECTIONS TO JURISDICTION .................................... CHAPTER 4: THE REQUEST IS ULTRA VIRES THE COMPETENCE OF THE 1oTH EMERGENCY SPECIAL SESSION ANDIOR THE GENERAL ASSEMBLY ........ A . Introduction .............................................................................. B . Background .............................................................................. (i) The Convening of the 1O" Emergency Special Session of the General Assembly ............................................................. (ii) The Uniting for Peace Resolution ..........................................
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