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The meeting was called to order at 10.10 a.m.
The President : I declare the tenth emergency special session of the General Assembly on illegal Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territory resumed, in accordance with the decision adopted by the General Assembly at the twenty-third meeting of its resumed tenth emergency special session on 8 December 2003, whereby the Assembly decided “to adjourn the tenth emergency special session temporarily and to authorize the current President of the General Assembly to resume its meetings upon request from Member States”.
In that connection, I should like to draw the attention of delegations to the following: document A/ES-10/274, which contains the text of a letter dated 12 July 2004 from the Permanent Representative of Jordan to the United Nations addressed to the President of the General Assembly, in which he requested, on behalf of the States members of the League of Arab States, the resumption of the tenth emergency special session; and document A/ES-10/275, which contains the text of a letter dated 13 July 2004 from the Chargé d’affaires a.i. of the Permanent Mission of Malaysia to the United Nations addressed to the President of the General Assembly, on behalf of the Chairman of the Coordinating Bureau of the Non-Aligned Movement, by which he conveys the support of the Non-Aligned Movement for the request for the resumption of the tenth emergency special session.
Agenda item 5 (continued)
Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory
Note by the Secretary-General (A/ES-10/273)
The President : In connection with this item, the General Assembly has before it a note by the Secretary-General transmitting the advisory opinion of the International Court of Justice on the legal consequences of the construction of a wall in the occupied Palestinian territory, issued as document A/ES-10/273.
I would also like to inform Member States that a draft resolution will be circulated later today.
I now give the floor to the Observer of Palestine.
Mr. Al-Kidwa (Palestine): Allow me first to join the Assembly in expressing our condolences and sympathy upon the passing of President Thomas Klestil of Austria. Our sympathies also go to the people of Nicaragua.
I wish to thank you, Sir, for all of your efforts in wisely and capably guiding the work of the General Assembly and for responding positively and in a timely manner to the request to reconvene this tenth emergency special session.
Palestine comes before this Assembly today with humility and deep conviction in the purposes and principles enshrined in the Charter of the United Nations, the primacy of international law and the central role to be played by this Organization in international relations. One week ago, on 9 July 2004, the International Court of Justice issued its advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory, pursuant to the request submitted by the General Assembly in resolution ES-10/14 of 8 December 2003. The advisory opinion, rendered with near unanimity by the Court, is a strong, clear and comprehensive determination of the applicable rules and principles of international law, including international humanitarian law and human rights law, and the legal obligations arising from the breach of that law by Israel, the occupying Power, as a result of its construction of a wall in the occupied Palestinian territory, including in and around East Jerusalem.
This advisory opinion represents a momentous and pivotal development. It has brought international law — which for too many years has been sidelined and undermined — back to the forefront of the dialogue concerning the question of Palestine and the Israeli-Palestinian conflict. And, while the advisory opinion may be considered a victory for the Palestinian people, it is also a victory for all the peoples of the region and for the future of that region. It is a watershed event that has the potential to elevate the situation in the Middle East to a new level — one that is based on international law and the ideals of peace and reconciliation. At the same time, the International Court of Justice’s ruling is without a doubt a victory for all those who believe in the rule of law and constantly strive to uphold that law and the authority and integrity of the United Nations system.
Having had a week’s time to truly absorb and reflect upon the advisory opinion, we take this opportunity before the international community to express our deep gratitude to the Court and to honour the judges who met the challenge before them with wisdom, courage and trueness to their responsibility to uphold the rules and principles of international law. We acknowledge and fully respect the Court’s important role and contribution within the United Nations system and the impact that this important opinion will have on the Israeli-Palestinian conflict and beyond.
Now that the Court has rendered its opinion, we have returned to the General Assembly, as the requesting organ, in the context of the tenth emergency special session, under the “Uniting for peace” procedure. After unanimously finding that it had jurisdiction, and finding no compelling reasons to decline the request, the Court decided to reply to the question put Now that the Court has rendered its opinion, we have returned to the General Assembly, as the requesting organ, in the context of the tenth emergency special session, under the “Uniting for peace” procedure. After unanimously finding that it had jurisdiction, and finding no compelling reasons to decline the request, the Court decided to reply to the question put to it by the General Assembly in order to provide the Assembly with the elements of law necessary for it in its action. In fact, the Court clearly determined the matter to be of relevance to the Assembly, stating that,
In its advisory opinion, the Court, the principal judicial organ of the United Nations, definitively spelled out the applicable law concerning this case. In addition to the rules and principles enshrined in the Charter and relevant General Assembly and Security Council resolutions, the Court established the provisions of international humanitarian law and human rights law relevant to the matter. It determined that the Hague Regulations — considered to have become part of customary international law — and the Fourth Geneva Convention are indisputably applicable in the occupied Palestinian territory, including East Jerusalem. The Court also found that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child are also applicable within the occupied Palestinian territory.
The advisory opinion thoroughly details the violations of these provisions of international law by Israel, the occupying Power, as a result of its construction of the wall and its associated regime. Cognizant of the time constraints, I will not go into depth in this regard, but I believe that it is necessary to briefly draw attention to the Court’s important and authoritative determinations.
The Court found that the customary rule regarding the illegality of the acquisition of territory resulting from the threat or use of force — a principle enshrined in the Charter and reaffirmed in General Assembly resolution 2625 (XXV) of 1970 — had been violated by Israel. The Court concluded that
In that connection, the matter of Israel’s unlawful colonization of Palestinian land over the decades was directly addressed by the Court. The Court found itself obliged to refer to Israel’s illegal measures with regard to Jerusalem and the settlements, insofar as they are unquestionably relevant to the construction and planning of the wall. Referring the Fourth Geneva Convention, the Court stated that
As to the specific violation of other relevant provisions of the law, the Court found that the obligations violated by Israel include certain obligations erga omnes, including
Indeed, the inalienable and legitimate right of that people to self-determination cannot continue to be questioned or rejected, and its violation must cease.
The Court also determined that
The violation of the freedom of access to the Holy Places was also addressed by the Court, which stated that Israel “must ensure freedom of access to the Holy Places that came under its control following the 1967 War”. ( ibid., p. 49)
Prior to turning to its determination of the legal obligations resulting from those violations, the Court addressed the security argument repeatedly made by Israel to justify its construction of the wall. The Court concluded that “Article 51 of the Charter has no relevance in this case.” ( ibid., p. 47 ) It also stated that it “is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” ( ibid., p. 47)
Moreover, while the Court recognized Israel’s right and duty to respond in order to protect the life of its citizens, the Court emphasized that “The measures taken are bound nonetheless to remain in conformity with applicable international law.” ( ibid., p. 48 ) Thus, the Court concluded that “Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall”. ( ibid. p. 48)
In the light of its findings, the Court was very clear in its response to the Assembly’s question as to the legal consequences arising from these violations of international law by Israel as a result of its construction of the wall. The Court comprehensively examined those consequences in paragraphs 149 to 160 of its advisory opinion. The consequences are set out in straightforward terms in the dispositif of the opinion, which have now been set forth in the draft resolution before the Assembly.
With regard to the occupying Power, the Court concluded that Israel is under an obligation to cease its construction of the wall it is building in the occupied Palestinian territory, including in and around East Jerusalem; to dismantle those parts already constructed; and to repeal or render ineffective all legislative and regulatory acts relating thereto. The Court also determined that Israel is under an obligation to make reparations for all damage caused by the construction of the wall.
In terms of the legal obligations of States, the Court concluded that all States are under the obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining it. It also determined that all States parties to the Fourth Geneva Convention have the additional obligation of ensuring Israel’s compliance with the Convention.
Lastly, the Court concluded that the United Nations, in particular the General Assembly and Security Council, should consider what further action is required to bring to an end the illegal situation caused by the construction of the wall and its associated regime, taking due account of the present Advisory Opinion.
I must reiterate before the Assembly that the conclusions of the International Court of Justice on the wall are non-negotiable. They are definitive, and we will proceed on that basis. This is not simply a matter of the adjustment of the route. The issue is the removal of every part of the wall that has been built in the occupied Palestinian territory, including East Jerusalem.
For our part, as a first step following the Court’s advisory opinion, we have returned to the international community at the General Assembly, as the requesting organ, to enable the Assembly to undertake its responsibilities in accordance with the Charter and its obligations as set out in the advisory opinion. This is also in line with the permanent responsibility of the United Nations towards the question of Palestine until it is resolved in all its aspects on the basis of international legitimacy. That responsibility was explicitly referred to by the Court.
The aim of the draft resolution before the Assembly today is two-fold: acceptance of the advisory opinion and a call for compliance by Israel, the occupying Power, and by Member States with international legal obligations as set out in the advisory opinion. It is our strong hope that this step will be accepted by all Member States in fulfilment of their Charter obligations. We must also set the stage for further actions by the United Nations and by the High Contracting Parties to the Fourth Geneva Convention, as stated by the Court, to end the current illegal situation in the case of non-compliance. Some preparations should be undertaken at present.
However, at a later stage, in the case of Israel’s non-compliance with its legal obligations, we expect States, individually, regionally and collectively at the United Nations, to undertake actions consistent with their legal obligations as determined by the Court. Those should include, inter alia, actions against all settlement activities and settlement products as well as sanctions against companies and entities involved in the construction of the wall or involved in other unlawful activities in the occupied Palestinian territory, including East Jerusalem. Although we are now in the early stages of following up on the advisory opinion, it is not too early to begin thinking about such options, particularly in the light of Israel’s immediate negative response in this regard.
In accordance with the Charter, and consistent with the Court’s ruling, it is clear that further action would, of course, entail the involvement of the Security Council, and we intend to pursue that. In that regard, the timing of bringing the issue before the Council will not be governed by extraneous considerations but only by developments on the ground with regard to the wall and the degree of compliance.
It is obvious that we must anticipate action in the Security Council. Israel has already declared its rejection of the Court’s authority and the advisory opinion and has declared its intention to continue constructing the wall in total disrespect of the Court and the advisory opinion and in violation of its legal obligations under international law as concluded therein. We shall not exempt the Security Council from its responsibilities, irrespective of the threat of the use of veto, including — and this is a testament to the extent of the abuse of this power — the threat by Israeli officials of the use of the United States veto. The threat of veto will not thwart us and all others who respect and uphold international law. Indeed, it is important to recall that it was the veto that led us to the doors of the International Court of Justice, as we did not cower but, instead, continued to seek implementation of the law within the United Nations system.
Successive vetoes have contributed absolutely nothing to the search for peace for the Palestinian and Israeli peoples. On the contrary, the vetoes have undermined and excessively complicated that search. Moreover, those vetoes have harmed the integrity of the system and engendered a growing cynicism in international relations about the credibility and efficacy of the Organization. With regard to the threat of vetoing a resolution concerning the respect of the advisory opinion and the legal obligations determined therein, we believe such an action would be tantamount to attacking the system and be a formal declaration of responsibility. It remains our hope, of course, that such a situation will not materialize.
Israel’s arrogant declarations of disdain and its rejection of the Advisory Opinion, expressed even at the highest levels of the Government by Prime Minister Sharon, are contemptuous. Instead of seriously considering the matter and the need and means for Israel to comply with its obligations under international law, Israeli officials are attempting to drag the debate to a new low. This is most exemplified by the shameful individual who dared to say that the advisory opinion would be put in “the garbage can of history” and another who cynically tried to portray the whole exercise as an attack against Jews. Such declarations not only must be deemed disrespectful of the Court and its opinion but must be considered a blatant contempt for the rule of law in international relations that entails clear liability.
Regrettably, such Israeli positions are not surprising. We have become inured to them. They are reflective of the typical Israeli school of thought espoused by officials who have consistently violated international law, consistently colonized our land, consistently violated United Nations resolutions, consistently violated the human rights of our people and consistently committed grave breaches, including war crimes, against our people — all with impunity under the protection of Israel’s patron State. Now, they are taking this to another level with the position they have taken vis-à-vis the International Court of Justice.
Nevertheless, we believe that this is not the last word. We believe that there are many reasonable and sane people in Israel who can change things. What we need to do now is to help those people to strengthen their positions while at the same time pressuring the rejectionists, with the aim of reaching the correct position: respect of the advisory opinion and compliance with the obligations of the occupying Power. We have chosen to proceed slowly precisely for that reason. We want to allow more time to achieve this result, during which we hope that different and positive dynamics will come into play. We also hope that during this time the United States will find itself able to take the right position with regard to this matter.
As for the Palestinian people, the advisory opinion has been having a positive — not a negative — impact on Palestinian society. People are seeing that international law can bring them justice. As a result, the law and compliance with it will take on even more importance and prominence within this society. This will be instrumental in developing and ingraining a culture of respect for the law, which is essential for the growth and progress of any society. Without a doubt, this advisory opinion provides a tremendous lesson on the primacy of the law and its rule, and everyone, especially in the region, must see this.
Let me say a word about the road map. It is obvious that the road map, which enjoys international consensus and support, can neither survive nor proceed without the cessation of the construction of the wall, which is making the two-State solution to the Israeli-Palestinian conflict — the ultimate goal of the road map — impossible to achieve. A clear position by the Quartet is Let me say a word about the road map. It is obvious that the road map, which enjoys international consensus and support, can neither survive nor proceed without the cessation of the construction of the wall, which is making the two-State solution to the Israeli-Palestinian conflict — the ultimate goal of the road map — impossible to achieve. A clear position by the Quartet is critically needed in that regard. Furthermore, proposals or developments such as a possible withdrawal of the occupying Power from Gaza must be carried out as part of the road map, and not in a vacuum. That would require the taking of similar steps by Israel in the West Bank and would, of course, require, and be contingent on, the cessation of the construction of the wall and the removal of the existing portion.
In the end, Israel will have to choose whether to declare itself officially, morally and legally an outlaw State, or to reconcile itself with a new reality and comply with the Court’s advisory opinion. We come before the Assembly with this introductory draft resolution with the intention of giving it a chance to comply with the opinion and to make serious efforts towards that end. It is Palestine’s strong hope that Israel will decide to comply with its obligations under international law and that the international community will act decisively to ensure respect for the law.
We thus hope that all Member States will firmly support the draft resolution as the first important step in that direction. Palestine has always been grateful for the overwhelming support of the General Assembly, and we are confident that it will continue to take principled positions with regard to this matter, particularly at this most critical time.
Mr. Al-Hussein (Jordan) (spoke in Arabic ): I am most honoured to speak at this important meeting today as the head of the Arab Group for this month.
At the outset, I should like, on behalf of the Arab Group, to join those who spoke before me in expressing our deepest condolences to the Government and the people of Austria on the passing of President Thomas Klestil last week. I should like also to express, on behalf of the Arab Group, our sympathy and our deepest condolences to the Government and the people of Nicaragua, who have so greatly suffered as a result of the floods in that country.
The General Assembly is resuming its tenth emergency special session today on the occasion of the issuance of an advisory opinion by the International Court of Justice, which the Assembly had requested of it in resolution ES-10/14, pertaining to the legal consequences arising from the construction of the wall being built by Israel in the occupied Palestinian territory, including in and around Jerusalem. The opinion was clear, specific and comprehensive, and, despite the attempts at political and media disruption which accompanied the issue of the wall, the Court upheld the truth. It made clear that it represents a legal refuge that can be resorted to when politics and military power try to supersede the rule of law.
The Court’s opinion is, quite simply, law. Therefore, Israel and the rest of the world must respect and abide by the Court’s findings. The United Nations has an ongoing responsibility with respect to the question of Palestine until it is resolved, in all its aspects, in an acceptable manner that is in keeping with international legitimacy.
The Court’s opinion has brought to light many illegal aspects that have a bearing on the Palestinian cause. The General Assembly, which requested the advisory opinion from the Court, will decide how it will undertake its responsibilities with regard to the question of Palestine an in general and to the dividing wall in particular, in the light of the legal conclusion that the Court has reached.
The Security Council and the General Assembly have adopted hundreds of resolutions since Israel’s occupation of the West Bank and East Jerusalem. Those resolutions consider the territories to be occupied and Israel to be the occupying Power under international law. However, Israel has for more than 37 years rejected the description of the territory as occupied and of itself as an occupying Power.
The Court’s conclusion shows that the Palestinian territories occupied in 1967, including East Jerusalem, are indeed occupied territories, that Israel is indeed an occupying Power, and it recalls that international law forbids the annexation of territories through the use or the threat of the use of force.
The Court’s opinion has shown that the relevant provisions of international humanitarian law apply to the occupied Palestinian territories, including The Hague Rules of 1907 and the Fourth Geneva Convention of 1949, which the Court declared apply legally to these territories. Israel has no room to argue that it is for Israel itself to implement the Convention. That also applies to the principles of human rights law, especially those stipulated by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, as stipulated by the Court.
For decades, the General Assembly has affirmed the right of the Palestinian people to self-determination, as stipulated by the Charter of the United Nations. However, Israel has spared no effort in attempting to marginalize that right through its various practices, starting with the direct and indirect forceful eviction of the Palestinian people from the Palestinian territories occupied in 1967 and continuing with the Israeli settlement policies and programmes in those territories and the construction of the dividing wall on occupied Palestinian territories.
In that connection, the International Court of Justice has shown that the Palestinian people’s right to self-determination is non-negotiable and that Israel is violating that right — an obligation erga omnes of States — through the Israeli settlements, which the Court unanimously considered to be a violation of international law, and by building the wall on occupied Palestinian territories, including East Jerusalem. The wall’s route, as specified by the Israeli Government, will include 80 per cent of settlers in the enclosed area between the wall and the Green Line. According to the Court, that will create a fait accompli and realities on the ground that may become permanent, resulting in a de facto annexation of those occupied Palestinian territories.
Indeed, those conclusions were no surprise. However, political considerations have led some to address the issue of the occupied Palestinian territories in general, and the construction of the wall in particular, on the basis of acceptance of the status quo. That in turn has encouraged Israel to continue to violate the Palestinian people’s right to self-determination and to violate international law and international humanitarian law in the occupied Palestinian territories. As had been the case with hundreds of previous United Nations resolutions, Israel accorded no importance to General Assembly resolution ES/10-13 and continued its construction of the wall and the accompanying confiscation and destruction of property, which have made the lives of the Palestinian people in the occupied territories unbearable.
The International Court of Justice showed us that Israel’s construction of the wall in occupied Palestinian territories, including East Jerusalem, is illegitimate and in violation of Israel’s international legal obligations, including its obligations erga omnes. The Court did not accept Israel’s claims that legal justifications exist for its illegitimate actions — including its construction of the wall on territories it does not own and in which it has acquired no rights — despite the creative legal terms used to describe those territories.
As the Court found, the law requires that Israel abide by its international legal obligations, put an end to its violations related to the construction of the separation wall on occupied Palestinian territories and immediately restore the status quo ante by removing the portions of the wall already constructed on those territories and repealing the relevant legislation and administrative procedures. Israel must also restore to the Palestinian people all their legitimate rights; it must return all confiscated property to its rightful owners; and it must compensate all those who have been harmed for the losses they have incurred as a result of its illegal actions.
Moreover, the law stipulates that the international community must not support Israel in the violation of its obligations erga omnes under international law, such as respect for the right to self-determination and for international humanitarian law. Therefore, according to the Court, the international community must not recognize the illegal situation resulting from the construction of the separation wall in the occupied Palestinian territories, including East Jerusalem. Countries must not help to maintain that illegal situation.
This is not theoretical discourse; rather, it has practical outcomes that countries can adopt to ensure respect for the rule of law and for the relevant principles of the Charter of the United Nations, including the right to self-determination. Moreover, the General Assembly — which requested the advisory opinion — is a forum where the international community can adopt such practical measures. By shouldering its responsibilities with regard to the issue of Palestine and carrying out its duties as stipulated by the This is not theoretical discourse; rather, it has practical outcomes that countries can adopt to ensure respect for the rule of law and for the relevant principles of the Charter of the United Nations, including the right to self-determination. Moreover, the General Assembly — which requested the advisory opinion — is a forum where the international community can adopt such practical measures. By shouldering its responsibilities with regard to the issue of Palestine and carrying out its duties as stipulated by the Charter, the Assembly can help to put an end to the illegal situation caused by the building of the separation wall and to ensure the implementation of international law as set forth by the Court.
( spoke in English)
In recent days, the Arab Group circulated a draft resolution that my delegation intends to submit in due course to the resumed tenth emergency special session of the General Assembly for its consideration, pending the outcome of further discussions among interested delegations. Our objective in pursuing a resolution flows from our belief that the General Assembly needs not only to acknowledge the receipt of the advisory opinion, but also to react positively to the Court’s unambiguous conclusions, which — we would argue most strongly — must be reproduced in full in any resolution to be issued by the General Assembly. We also consider it necessary that we lay the foundations for a process of building, subsequently and in a practical manner, upon the advisory opinion should Israel not comply with its legal obligations underscored in the opinion. Compliance would naturally mean that Israel would have to end its breaches of those legal obligations; cease the construction of the wall in the occupied Palestinian territory, including in and around East Jerusalem; dismantle the parts already built in those areas; repeal the relevant legislative and administrative measures; and repair the damage caused.
Ultimately — forgive me for repeating myself — the opinion is fundamental in its importance for no simpler reason, we believe, than that it has demonstrated to all persons everywhere that, in spite of the realities of political power and expediency, justice, when sought, can still be found. The advisory opinion has furthermore confirmed to the international community that, once again, the cause of the Palestinian leadership and its people is a most just and worthy cause.
Mr. Gillerman (Israel): Let me begin by expressing our sympathy and the sympathy of the people of Israel to the people and the Government of Austria for the passing of that country’s former President, Mr. Thomas Klestil, and to the people and the Government of Nicaragua for the recent floods in that country. Israel stands ready to assist in relieving the plight of the Nicaraguan people, as it has assisted people for decades on every continent around the world.
For years, if not decades, the Assembly has entertained the Palestinian representative’s attempts to manufacture a virtual reality — an alternate world in which there is but one victim and one villain, in which there are Palestinian rights but no Palestinian responsibilities, and in which there are Israeli responsibilities but no Israeli rights.
This persistent campaign has contributed little to the credibility of the United Nations and nothing to the cause of peace. It has pushed the parties further apart. With each successive partisan initiative, we are left to wonder how the United Nations can contribute to the welfare of both peoples if it sees the suffering of only one.
Last December, despite the reservations of many States, including the members of the Quartet, the International Court of Justice was dragged into that virtual reality. To add the Court to the list of United Nations organs harnessed to this one-sided agenda and to extend the immoral majority from this Hall to The Hague, a grotesquely distorted question was devised that placed the response to terrorism on trial, but ignored the terrorism itself. The hope was to create so perverted a process that the Court would be compelled to ignore the suffering of innocent Israelis from terrorism and the obligations of the Palestinian side to prevent it. Last Friday, sadly, that hope was realized.
The Israeli and Palestinian peoples do not live in that reality. While States are engaged in studying the advisory opinion, Israel is burdened with the heavy responsibility of saving the lives of its citizens from the most brutal and evil terrorist campaign. We live in the reality in which, just two days after the opinion was issued, terrorists belonging to Yasser Arafat’s Fatah faction attacked a commuter bus in Tel Aviv, killing one woman and injuring 34 others. This is a reality where, after such a horrific attack, Arafat can make the sickening accusation that Israel orchestrated the murder of its own citizens and have it pass without comment. This is the reality in which we are seeking out partners in peace and trying — despite all the difficulties — to create conditions in which both sides can live up to their responsibilities and achieve their rights. The path to peace does not lie in The Hague or in New York. It lies in the region; it lies in Ramallah and Gaza, from where the terrorism is directed.
We can all agree that our goal must be a situation in which no fences between Israelis and Palestinians are necessary, but delegates are deceived if they think, even for one second, that that goal can be attained by considering the obligations of only one side.
As the General Assembly will recall, Israel, together with a large number of States, did not support the request for the advisory opinion. Like the members of the Quartet and countries such as the United Kingdom, Cameroon, Italy, Canada, Australia, Germany, the Netherlands and others, we submitted a detailed document to the Court noting that the request was inappropriate, a misuse of the advisory opinion procedure and damaging to the road map. For its part, Israel could not grant legitimacy to this tainted procedure or be a fully engaged party in what we knew to be a counterproductive and harmful initiative.
We continue to believe that it was wrong for the General Assembly to put the Court in that position. Simply put, the Assembly put the wrong question before the wrong body, and in so doing made it more difficult for the Court, even with the best will in the world, to reach a fair, balanced and helpful response. As noted by Judge Kooijmans of the Netherlands, by politicizing the Court, the Assembly turned that judicial organ into an actor on the political stage. By being drawn into a partisan procedure, the Court has become the latest victim of the Palestinian political campaign, and it is the worse for it. We believe that this process produced a dark day for the International Court of Justice and a dark day for the United Nations. Do not let that darkness reign here today.
All those States that expressed concern about this misuse of the advisory process should now be wary of allowing this process to dictate the international agenda. There are already worrying indications that the request last December was a test case — a precedent for further abuse of the Court. It would be a grave mistake to allow this essentially political manoeuvre to undermine the prospects for progress on the ground, and it would be equally dangerous for the Assembly’s actions to be viewed as rewarding such a misguided and politically motivated recourse to the Court.
Key States also warned that isolating one issue out of a complex conflict reserved for political negotiations could only lead to a distorted result. They warned of the lack of legitimacy inherent in a process that placed the victims of terrorism on trial, but spared the murderers of any judicial scrutiny. And they warned that any opinion reached as a result of such a skewed process could only lead to politicization and the misrepresentation and misuse of the law with ramifications well beyond the confines of our conflict. These warnings were all too real, but they were not heeded.
Israel has respect for the institution of the International Court of Justice and we believe in its ideals. We represent a people that knows all too well the cost of living in a society in which individuals are not protected by the balanced application of the rule of law. That is perhaps why we are especially disappointed by the exploitation of the Court in this case. We will not be the first State, and certainly not the last, to have differences with the positions expressed in an opinion of the Court, its historical and factual analysis or central aspects of its reasoning. We note that other States too, as well as several judges on the Court, have serious disagreements with key portions of this opinion. This is not the time or the place to explain those differences in detail, but we are compelled to address a number of aspects of this process that bear directly on the deliberations of the Assembly.
Israel is dismayed that, in the 60-plus pages of the opinion, it was deemed inappropriate to seriously address the brutal terrorism that innocent Israeli civilians are facing or the ongoing refusal of the Palestinian leadership to bring that terrorism to an end. Those crimes are the very reason that the fence is being erected, and the Court’s silence in this regard is deafening. While realizing the constraints placed on the Court by the distorted question and the partial dossier placed before it, we find this glaring omission legally inexplicable and morally inexcusable.
We note the deep concerns expressed by Judge Higgins of the United Kingdom, Judge Owada of Japan and others about the failure to declare in the clearest terms that Palestinian terrorism directed at Israeli civilians is a violation of the basic tenets of international humanitarian and human rights law. We agree that this failure fundamentally undermines the balance and credibility of the opinion.
Incredibly, the value of property has been elevated by this twisted process over the value of human life. It has become more about real estate than about real life.
There has been much talk about property, especially about this property – this fence — which is totally removable and totally reversible. But there has been no mention of another kind of property: the graves of the dead — lives taken by terrorism, totally extinguished, irreversibly. There has been much talk about rights. Yes, the human rights of all people, of Israelis and of Palestinians, are sacred and important. But there has been no mention of the most important and basic human right of all: the right not to be murdered — the right to live.
We also share the concerns of some of the judges on the Court regarding the selective reliance on facts and secondary materials and a historical presentation which, to quote Judge Higgins of the United Kingdom, was “neither balanced nor satisfactory” — a presentation that addresses the League of Nations Mandate but ignores the Mandate’s express recognition of the Jewish people’s right to self-determination in their ancient homeland; a presentation that addresses the wars between Israel and its neighbours as if they materialized out of thin air, rather than as a result of deliberate acts of aggression designed to wipe Israel off the map.
We share, too, the deep reservations about a narrow statement in the opinion that could read as though it questions the right of States to self-defence against terrorism, despite all the evidence in law, Security Council resolutions and State practice to the contrary. There is no justice and no law in such an interpretation. It is not a rule that States can live by. It is, tragically, a rule that people die by.
Israel is occasionally urged to put more faith in international institutions and actors, to trust in their objectivity and their fairness. We are told to have faith that the political manipulation of their noble goals will not be tolerated. What will we tell our citizens today?
Israel recognizes that, like every measure that tries to prevent acts of terrorism emanating from civilian areas, the security fence raises complex legal and humanitarian issues. Accordingly, the fence and its route are subject to a process of constant review and change. This process includes giving every affected individual, Palestinian or Israeli, the right to petition Israel’s Supreme Court, and numerous such petitions are pending. Indeed, Israel’s Supreme Court is one of the few courts in the world, and certainly the only one in the region, that vigorously applies international law to examine the domestic actions of its own Government. It is a fiercely independent judicial institution that has earned the respect of ju Israel recognizes that, like every measure that tries to prevent acts of terrorism emanating from civilian areas, the security fence raises complex legal and humanitarian issues. Accordingly, the fence and its route are subject to a process of constant review and change. This process includes giving every affected individual, Palestinian or Israeli, the right to petition Israel’s Supreme Court, and numerous such petitions are pending. Indeed, Israel’s Supreme Court is one of the few courts in the world, and certainly the only one in the region, that vigorously applies international law to examine the domestic actions of its own Government. It is a fiercely independent judicial institution that has earned the respect of jurists and lay people throughout the world. And it is probably the only court in the entire Middle East in which an Arab can challenge his Government’s actions and be assured of justice, rather than jail.
On 30 June, in response to one such petition, Israel’s Supreme Court issued a landmark ruling on the security fence. Relying on specific provisions of international humanitarian law, the Israeli Supreme Court recognized Israel’s authority to erect a fence as a defensive measure against terrorist attacks. It affirmed also that, had the fence been built along the so-called Green line — an arbitrary line that has never served as an international border — that itself would have been evidence that the route was being determined by inappropriate political considerations rather than justifiable security ones.
At the same time, the Israeli Supreme Court stressed that the fence must be carefully balanced against the rights of those affected by it. The Israeli court, in a thorough and rigorous judgement, laid out a detailed proportionality test by which such a balance could be reached. It went on to find, by reference to that test, that sections of the fence required re-routing.
There are, of course, important differences between the ruling of the Israeli Supreme Court and the International Court of Justice’s advisory opinion. The Supreme Court was petitioned by Palestinians and Israelis who wanted practical solutions on the ground; the International Court of Justice was asked a question as part of a political and manipulative campaign. The Israeli Supreme Court sought to find a balance between competing rights; the International Court of Justice was asked only about the rights of one side. Perhaps most importantly, the Israeli Supreme Court had before it detailed and specific evidence, including witness testimony, on all aspects of routing, its security rationale and associated humanitarian effects; the International Court of Justice was supplied only with partial, outdated and often misleading information. Finally, of course, while the opinion of the International Court is advisory only, the Supreme Court ruling is binding upon Israel.
As always, Israel, as a country that respects the rule of law, will fully comply with the decisions of its courts. Following the judgement of the Israeli Supreme Court, the Government announced that it would not only re-route those parts of the fence that were the subject of the petition, but re-examine the entire routing of the fence so as to ensure that it complies with all the requirements of international law. That re-examination has already led to a decision to re-route large portions of the fence. As Israel’s Court declared, and as the Government of Israel fully accepts,
The views expressed by the International Court of Justice do not relate to the legal authority to erect the fence in principle, but to a “specific course” which the Court has presumed to exist by relying primarily on the selective and one-sided information with which it was supplied. The Court reached its opinion on this specific question “on the material before it”. But the material before it referred, in large measure, to a fence that does not exist. Indeed, even if the information before the Court had been accurate when presented, it does not reflect the actual route of the fence that is under consideration today.
Examining the legality of the route demands a detailed proportionality assessment. It requires specific knowledge of topographical, security, environmental and humanitarian considerations at each section of the fence. It requires a thorough appreciation of the precise scope of terrorist attacks that Israelis face and the manner in which the specific route chosen has proven an effective means of thwarting those attacks.
Such analysis cannot be based solely on reports about the alleged humanitarian impact of the fence, which are themselves outdated and alarmingly inaccurate. As Judge Buergenthal notes, in the absence of such a detailed and serious examination, it is simply impossible to reach definitive legal conclusions.
We do not believe that so complex an issue can be addressed with so little opportunity for forensic examination. We do not believe that definitive conclusions can be reached on so obviously inadequate an evidentiary record. The opinion of the Court does not rule out the authority to erect a fence in the West Bank. Indeed, it recognizes that military exigencies and security imperatives could justify the erection of such a fence, but it fails to properly examine those exigencies and its opinion relates only to a phantom route that bears little resemblance to the route actually under review. It should be considered accordingly.
We are not impressed by lectures from Palestinian spokesmen about respect for the rule of law. We have all witnessed first hand the extent of the Palestinian leadership’s respect for law in its support for a brutal campaign of terrorism that violates every basic legal norm, while it rejoices over the murder of innocent citizens in terrorist attacks — not only in Israel, but around the world — or plunder We are not impressed by lectures from Palestinian spokesmen about respect for the rule of law. We have all witnessed first hand the extent of the Palestinian leadership’s respect for law in its support for a brutal campaign of terrorism that violates every basic legal norm, while it rejoices over the murder of innocent citizens in terrorist attacks — not only in Israel, but around the world — or plunders international donor money intended to benefit its own people.
We have heard similar self-righteous rhetoric from other regimes in our region — those enraged when Israel seeks to protect itself under extremely difficult conditions, but unable to muster a word of condemnation for the systematic and shocking ethnic cleansing under way in the Sudan or the violations of basic rights and freedoms in their own countries. This rage and concern, this spirited defence of the rule of law, would carry a little more conviction if it were a little less self-serving. For too many regimes in the region, this declared adherence to the rule of law is advanced only when politically expedient. The cause of peace and the lives of people in the region would be far better served if those States actually held themselves to the standard to which they demand Israel alone adhere, and to which Israel does adhere.
For all those that speak so hypocritically of compliance, the rule of law and outlaw States, let me say this. Are there laws for Israel and different laws for everybody else? We await to hear a supreme court in any of these regimes call on its authorities to alter their security plans, let alone see the authorities abide by such a ruling. We await an advisory opinion or even a single United Nations resolution that addresses the legal obligations of those regimes to end terrorism, stop hate-filled incitement and respect the human rights of their own citizens, let alone those of other States. Those regimes have the gall to speak of sanctions for a measure that saves lives. We await sanctions for the terrorism they sponsor, which takes lives. If those regimes, or the Palestinian Authority — where only this morning armed militants kidnapped the head of its own police force — are entitled to lecture anyone about the rule of law or accuse others of being outlaws, we have indeed reached a point where the inmates are running the asylum.
Israel recognizes that it has responsibilities, but it is not alone. The Palestinian side calls on Israel to comply with a non-binding opinion. We call on Palestinians to comply with their binding legal obligations. There is, after all, one straightforward measure that would lead to the removal of the fence — and it is not more resolutions adopted in United Nations halls. It is, simply put, for the Palestinian side to abandon terror as a strategic choice and to comply once and for all with its obligations to fight terrorism and incitement. As controversial as the fence may be, one issue is beyond controversy. The terrorism that made the fence necessary is not only a grave violation of international law, but the enemy of the Israeli and Palestinian peoples, and its eradication is an indispensable step to lasting peace. As I have repeatedly stated, and as many members know, this is the Arafat fence. It is the fence that Arafat built. Were it not for Arafat’s terrorism, there would be no fence.
Throughout this process, there have been excited attempts to present the advisory opinion as something that it is not — a binding verdict that must be complied with and that necessarily dictates the action of political organs of the United Nations. That assertion is simply inconsistent with the actual legal status of such opinions as non-binding under international law and runs counter to the history of their subsequent treatment by United Nations organs. The record of United Nations bodies is replete with examples of States, from every continent and regional group, that have taken serious issue with aspects of an advisory opinion. Many States have voted against resolutions that, like the draft resolution before us today, take the advisory opinion out of their political context. In some cases, the Assembly has chosen merely to take note of, rather than expressly endorse, the opinion. And in most cases, the United Nations membership has recognized that its political organs are compelled to take broader political and strategic considerations into account and should not be limited in their consideration to the narrow treatment of isolated legal issues.
Given the controversy surrounding the request for the advisory opinion, every one of those considerations applies in this case. If the number of States objecting to this abuse is not enough; if the serious criticism of the opinion by numerous judges on the Court and by a growing number of legal experts around the world is not enough; if the obviously self-serving nature of the present draft resolution is not enough, then surely the imperative of advancing the road map should itself allow for no other conclusion.
In the months since the opinion was requested, one thing has become abundantly clear: the fence works. In those places where the fence has been erected, it has succeeded in making it far more difficult for terrorists to take innocent life and sabotage the peace process. Scores of suicide attacks have been thwarted, the latest of which just two days ago. Hundreds of lives have been saved. There has been a dramatic reduction of over 90 per cent in successful terrorist attacks, a 70 per cent reduction in citizens killed and an 85 per cent reduction in the number of wounded — all of which can be attributed directly to the security fence. Listen for a moment to Tawfiq Karaman, City Manager in Umm el-Fahm, who said: “Allah be blessed, the fence ended the parade of terrorists through this city”. Listen to Sami Masrawa, an Israeli Arab injured in Sunday’s bus bombing, who said: “A month ago I went to protest the fence; now I believe it can only strengthen us”. And as Israel is able to protect its citizens — Israeli and Arab alike — by more passive means, it has also been possible to remove road blocks and withdraw troops from Palestinian areas, improving security, humanitarian and economic conditions for thousands of Palestinian residents.
By closing the avenues of terror, we can open the path to peace. As the Quartet and many other States have recognized, there is now a genuine chance to restart the road map peace process as a result of the disengagement plan. That opportunity has been created by the security benefits of the fence. It must not be squandered. The fence, and its actual, rather than imagined route, poses no threat to the emergence of a viable and democratic Palestinian State as part of the road map process. Indeed, with its help in taking terrorism out of the equation, a negotiated two-State solution becomes possible.
As Israel has repeatedly declared, the fence does not affect the legal status of the territories, and as has been done in the past, it can be moved or removed to accord with any political settlement. As Prime Minister Sharon has pledged, the fence is a security rather than a political barrier, temporary rather than permanent, and therefore will not prejudice any final status issues, including final borders. Above all, the fence is reversible. The taking of lives by terrorism is not.
We would urge representatives, rather than accepting every facile allegation as fact, to see not just the response to terrorism, but the terrorism itself. The Assembly has already expressed itself on the issue of the security fence, but it has yet to address the terrorism that necessitated it. It is time for the Assembly to ask some different questions. And it is time for members to ask themselves, seriously, what steps can now be taken to bring the parties closer together, not to push them even further apart.
The General Assembly does, indeed, have a choice today: to correct the error made last December, or to compound it. The Palestinian side hopes that the Assembly will preserve the comic-strip narrative of victim and villain that they have laboured so intensively to create. That is why they were so angered four days ago when the Personal Representative of the Secretary-General had the audacity to suggest that both sides had to live up to their obligations. But that comic-strip story can produce only paper; it cannot produce progress and it cannot produce peace. By ignoring Palestinian obligations, the Assembly only sets back the Palestinian cause. By reinforcing a sense of privilege without a sense of responsibility, the Assembly adopts a patronizing agenda that undermines the creation of a democratic Palestinian State at peace with its neighbours in the context of a permanent settlement. Only the political process laid out in the road map, which sets out mutual rights and mutual obligations, can achieve real results. The Assembly must decide whether it lives in the virtual world created by Palestinian draft resolutions or in the real world. It cannot live in both.
The advisory opinion of the International Court of Justice took place in a virtual reality, but it did not take place in a vacuum. On the ground, the launching of a bold and serious initiative of disengagement from Gaza and parts of the West Bank carries the potential to re-energize the peace process. That is where our attention must be focused. We are currently engaged in consultations with States in the region and with Quartet members in order to create conditions in which the disengagement plan can help facilitate genuine progress and the realization of a viable two-State solution in the context of the road map.
Surely we can agree that this is the goal: an end to violence, terrorism and incitement, as required by the very first clauses of the road map; an end to suffering on both sides; and a commitment to peace, dignity and prosperity for both peoples, based on mutual recognition and mutual compromise. All of that can come about only by a fulfilment of the obligations agreed to by both sides, so that temporary fences of security can quickly be replaced by permanent bridges of peace.
If the General Assembly wishes to make a relevant and constructive contribution to this noble endeavour, we must keep our eye on that prize. We must avoid adopting one-sided, diversionary and divisive resolutions, inspired by the partisan interests of one party to the conflict, and thus, of necessity, deficient in their impact and their claim to legitimacy.
The barrier between Israelis and Palestinians is not the security fence, but the terrorism that made it necessary. Were it not for that terrorism, a viable two-State solution would have emerged long ago. Palestinian terrorism seeks not the end of occupation, but the end of Israel. The events of recent years and the hate-filled rhetoric of the terrorist ringleaders tell us as much. As long as the Assembly averts its gaze from that stark reality, it does the cause of peace a great disservice. The people in the region deserve, and in fact demand, better. We urge the Assembly to heed their call.
The President : I now give the floor to the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People.
Mr. Badji (Senegal) Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People ( spoke in French ): I would like first of all, on behalf of my country, Senegal, to join in the tribute to the memory of Mr. Thomas Klestil, President of the Republic of Austria, who passed away a few days ago. We would like to express our deepest condolences to the friendly people of Austria, to their Government and to the family of Mr. Klestil.
We would also like to express sentiments of sympathy, friendship and solidarity to Nicaragua, which has suffered from serious flooding.
I am speaking to the General Assembly at its resumed tenth emergency special session in my capacity as Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People. The Committee joins a large number of Member States, intergovernmental organizations and eminent political figures in welcoming with satisfaction the advisory opinion of the International Court of Justice regarding the legal consequences of the building of a wall in the occupied Palestinian territories, including East Jerusalem.
The clear, exhaustive and detailed decision, which carried a strong message from the Court, was adopted by an overwhelming majority. It represents an ineluctable juridical, ethical and political directive with which all States, including Israel, must conform and to which they must adhere.
The Court’s decision clearly confirms the position of the majority of the international community that the construction by Israel of a wall in the occupied Palestinian territories, including East Jerusalem, is illegal and constitutes a violation of international law. The wall is a serious obstacle to the exercise by the Palestinian people of their right to self-determination, and constitutes a failure on the part of Israel to meet its obligation to respect that right.
The ordeals unjustly endured by thousands of Palestinian prisoners in the enclaves created by the wall are well known and have been described in many documents. Palestinian lands have been confiscated, houses razed and communities dislocated, with entire populations condemned to poverty and despair. Severe restrictions and a grave disruption of daily activities further increase the difficulty of life under Israeli occupation.
The Committee has always recognized that the Israeli Government has the responsibility and the duty to protect its citizens. However, as the Court notes, the right of legitimate defence cannot justify the illegality of the wall’s construction in the occupied territory. The Court unambiguously affirms that Israel is obligated to halt the work of constructing the wall, to dismantle it and to repair all the damage caused by the building of that structure. It also declares that all States are duty-bound not to recognize the illicit situation resulting from the wall’s construction and not to provide any aid or assistance that would contribute to the maintenance of that situation. The international community must do everything in its power to ensure that the law will prevail and that the Court’s decision will be effective.
Moreover, the Committee notes that the Court also reaffirms that Israel’s policy of building settlements, as well as the wall, tends to alter the territory’s demographic composition and violates the provisions of the Fourth Geneva Convention and of the relevant resolutions of the Security Council. We wish to observe that the Council, in its resolution 446 (1979), adopted in March 1979, determined that Israel’s policy and practice of establishing settlements in the occupied territories have no legal validity and seriously hamper the establishment of a general, just and lasting peace in the Middle East.
Today, 25 years later, we note that Israel has repeatedly flouted the provisions set forth in Security Council resolutions calling upon it to put an end to that practice. Disregarding those provisions, Israel has disseminated more than 400,000 settlers throughout the occupied Palestinian territory. By illegally constructing the wall, it has created an irrational situation on the ground that makes the establishment of a neighbouring Palestinian State practically impossible and that seems to predetermine the outline of the future borders between Israel and such a Palestinian State. The crucial question of borders must be settled only within the framework of political negotiations between Israelis and Palestinians. Only a negotiated settlement can establish a lasting peace between the two peoples and in the rest of the Middle East.
Last week, Member States and intergovernmental organizations welcomed, in the opinion of the International Court of Justice, a significant decision that will remain a historic event. That opinion of the Court is indeed historic, not only because of its urgent message, but also because it is the first time that this main body and supreme judicial forum of the United Nations is pronouncing on a substantive problem relating to the question of Palestine. The International Court of Justice has thus joined other main United Nations organs that are fully committed to finding a positive solution to this long and painful conflict.
The Committee is of the view that the advisory opinion, if applied with far-sightedness and determination, can help to restore the political dialogue and to relaunch the negotiations between the two parties.
The Committee reaffirms its long-standing position that the United Nations must continue to shoulder its permanent responsibility with regard to the question of Palestine until that question is satisfactorily resolved in all its aspects, in conformity with the relevant United Nations resolutions and in respect for international law, and until the inalienable rights of the Palestinian people are fully restored.
The Committee is convinced that the advisory opinion of the International Court of Justice offers the international community a unique opportunity to intensify its efforts and to accelerate the process aimed at helping the Palestinian people to exercise their inalienable rights. Progress has been slow, lengthy and difficult for the Palestinian people. It is high time that they be able to establish their own independent and sovereign State and to live side by side with Israel within secure and recognized borders, as envisaged in the road map.
The President: I now give the floor to the representative of Malaysia, speaking on behalf of the Non-Aligned Movement.
Mr. Radzi (Malaysia): Let me begin by joining previous speakers in expressing, on behalf of the Non-Aligned Movement, our deepest condolences to the people and the Government of Austria on the passing of the former President Thomas Klestil. We wish also to express our sympathy and solidarity to the Government of Nicaragua on the loss of life and destruction of property caused by the recent flood.
On behalf of the Non-Aligned Movement, I wish to thank you, Mr. President, for convening the resumed tenth emergency special session of the General Assembly. The convening of this meeting is extremely important in order to enable the General Assembly to react immediately to the advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory, rendered by the International Court of Justice at The Hague on 9 July 2004. We thank the Court for its advisory opinion.
The advisory opinion is a significant milestone in international law and, in particular, in our efforts to bring to an end the sufferings and dire humanitarian consequences inflicted upon the Palestinian people. The Non-Aligned Movement considers the advisory opinion to be an independent and impartial pronouncement on the legal consequences arising from the construction of the wall by Israel, based in the rules and principles of international law, including the Fourth Geneva Convention of 1949 and the relevant General Assembly and Security Council resolutions. The General Assembly may recall that the Non-Aligned Movement stated its position on the construction of the Israeli wall during the previous two resumptions of the tenth emergency special session of the General Assembly, on 20 October and 8 December 2003. The Non-Aligned Movement maintained the following.
First, the wall was illegal and must be dismantled, and its further construction must be immediately discontinued.
Secondly, the wall — sections of which are constructed deep inside the occupied Palestinian territory — departs from the Armistice Line of 1949 and therefore is illegal under international law.
Thirdly, the wall gravely violates the Fourth Geneva Convention in that it involves the illegal, de facto annexation of large areas of Palestinian land and resources, the transfer of a great number of Palestinian civilians and the further deprivation of their human rights, resulting in further dire humanitarian consequences among an already-deprived people.
Fourthly, the wall presents a major obstacle to the implementation of the road map as it undermines the creation of a viable, contiguous Palestinian State and thereby diminishes the possibility of realizing the two-State solution.
Finally, the wall could trigger the end of the Middle East peace process, since it possesses the potential of provoking further unprecedented violence among the severely oppressed Palestinian people in their desperate effort to survive under the brutal oppression of the Israeli Government.
The conclusions and observations made by the International Court of Justice in its advisory opinion have confirmed what the Non-Aligned Movement has stated all along. The Court unanimously found that it has jurisdiction to give the advisory opinion requested by the General Assembly and, by fourteen votes to one, the Court decided to comply with the request for an advisory opinion.
The Court has replied to the question put to it by the General Assembly in the following manner: first, by fourteen votes to one, that
The Non-Aligned Movement wishes to commend and express its appreciation to the Secretary-General for his incisive and informative report, prepared pursuant to General Assembly resolution ES-10/13, as contained in document A/ES-10/248 of 24 November 2003, which has enormously helped our deliberations and, to a large extent, I believe, those of the International Court of Justice on this important question. In this context, I wish to recall the salient elements of the conclusions in the Secretary-General’s report, as follows.
First, Israel is not in compliance with the General Assembly’s demand that it stop and reverse the construction of the wall in the occupied Palestinian territory. Secondly, the construction of the wall in the West Bank is a deeply counterproductive act. The placing of most of the structure on occupied Palestinian land could impair future negotiations and damage the longer-term prospects for peace by making the creation of an independently viable and contiguous Palestinian State more difficult. Finally, the security of Palestinians and Israelis alike can be assured only through a just, comprehensive and lasting peace settlement based on Security Council resolutions 242 (1967) and 338 (1973).
As we revisit this question at this resumed tenth emergency special session, it is clear that Israel has chosen not to comply either with the demand of the General Assembly, which was clearly pronounced in resolution ES/10-13, or with the advisory opinion. As of today, Israel has neither stopped nor reversed the ongoing construction of the wall, nor dismantled it. On the contrary, and in defiance of the advisory opinion, as well as the views of the international community, Israel has declared its intention to continue with the construction of the wall and to complete it by 2005 as scheduled. Israel declared that it will not accept the advisory opinion on the very same day it was published, in flagrant disrespect for the highest judicial organ of the United Nation and to the judges of the Court who have solemnly pronounced their opinion.
The reaction of Israel is a clear demonstration of its continuing intransigence and defiance of not only the opinion of the Court, but also that of the general membership of the United Nations. Therefore, we urge this Assembly to act to bring Israel to recognize the seriousness of the matter and to fully observe the advisory opinion. The proposed draft resolution before us is intended to be an effort towards that end.
The Non-Aligned Movement reaffirms that a just, comprehensive and lasting settlement to the conflict can be achieved only on the basis of the implementation of Security Council resolutions 242 (1967) and 338 (1973). In addition, serious efforts must be undertaken to achieve the two-State solution that would ensure the creation of a sovereign, independent and viable State of Palestine and the existence of Israel, both living side by side in peace and security, within secure and recognized borders, as envisaged in Security Council resolutions 1397 (2002) and 1515 (2003).
The Non-Aligned Movement believes that this Assembly should muster the necessary political will, wisdom and courage to decisively respond to the question that is now before us. We remain fearful of the inevitable damaging and dangerous consequences if the wall were to continue along its planned route, in defiance of General Assembly resolution ES-10/13 and the advisory opinion. The Non-Aligned Movement firmly believes that the adoption of the proposed draft resolution during this tenth emergency special session would send a strong and clear message to Israel. It would also continue to demonstrate in a tangible way the concern and sympathy of the General Assembly and the international community for the dire plight of the Palestinian people, who have been severely disadvantaged and deprived by the existence and continued construction of the wall, confining them as virtual prisoners in their own homeland behind the wall, in addition to the trenches, fences, security roads and blockades they have had to put up with all these years. It would be most unfortunate and tragic indeed if the General Assembly were to fail in its responsibility to uphold justice for the Palestine people and to promote peace between th em and the Israelis. Justice must be done. It must be done expeditiously, as time is running out.
Mr. Chaudhry (Pakistan): I should like, on behalf of the Government of Pakistan, to convey our condolences to the Government and the people of Austria on the sad demise of the President, the late Mr. Thomas Klestil.
We also extend our sympathies to the people and the Government of Nicaragua on the tragic loss of life and property resulting from the recent floods there.
We have returned to this Hall to reflect upon the advisory opinion of the International Court of Justice on one grave aspect of the unfortunate and disturbing situation in the Middle East.
The Court has confirmed what the international community has widely believed about the conduct of Israel in the occupied territories, particularly with reference to its uninhibited construction of the separation wall.
The advisory opinion of the International Court of Justice finds the construction of the separation wall contrary to international law. It emphasizes the obligation of all States not to recognize the illegal situation created by the construction of the wall. The Court has ruled that Israel is under an obligation to cease forthwith the construction of the wall and to dismantle the structures therein. The opinion also determines the obligation of Israel to make reparations for the damage caused to affected persons by the construction so far. The opinion states that the United Nations, especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall.
The illegality of the acquisition of territory by the threat or use of force is clearly established in the Charter and in resolution 2625 (XXV). Resolution 2625 (XXV) also outlines the principles of equal rights and self-determination of peoples. It is clear that Israel is in violation of all of those principles.
The advisory opinion further confirms Israel’s persistent violations of the Fourth Geneva Convention, under which the Palestinian people are protected persons. Israel’s policy of settlement-building in the occupied territories is a glaring example of its defiance of the Convention.
The advisory opinion of the International Court of Justice clearly shows that Israel — and, indeed, all other States which are in occupation of foreign territories and peoples — have no legal or moral grounds for the construction of such walls and fences in territories under their occupation.
In addition to being illegal, the separation wall in the occupied Palestinian territories will cause enormous humanitarian suffering for the affected Palestinian people. In his report of September 2003, the Special Rapporteur of the Commission on Human Rights calculated that at least 210,000 Palestinians will be affected by the wall. According to him, Palestinians living between the wall and the Green Line will be effectively cut off from their farmland and work places, schools, health clinics and other social services. This is likely to lead to a new generation of refugees or internally displaced persons. The number of internally displaced Palestinians is already increasing due to the Israeli campaign of house demolition in the occupied territories.
The real issue is that for over three decades Israel has remained in illegal occupation of the Palestinian territories and has suppressed the legitimate right of the Palestinian people to self-determination. History bears witness to the fact that the use of force, separation walls and wire fences have never been able to crush the legitimate aspirations of the people under occupation. Permanent security can be established only by respecting those aspirations, not by repressive tactics, assassinations, economic blockades and collective punishment.
The construction of the wall will impede the realization of the road map, which is designed to bring permanent peace and security to the Middle East. The Secretary-General has described the separation wall and the settlements as serious obstacles to the achievement of the two-State solution. The Secretary-General has further remarked that the wall threatens the future establishment of a viable and independent Palestinian State.
It will not be possible to establish a viable Palestinian State — as envisaged in the Quartet’s road map — in the Bantustans that will be created by the separation wall. Occupation Powers should not be allowed to create faits accomplis on the ground and seek the settlement of territorial disputes on that basis.
Israel has a real opportunity to demonstrate its commitment to long-term peace in the Middle East by accepting the advisory opinion and implementing the obligations arising from it in good faith. That would go a long way towards building confidence in an environment marked by deep distrust. It would also enhance the prospects for a revival of the peace process.
For its part, the international community has an opportunity to uphold the principles of justice and the rule of law. The international community should ask the Government of Israel to comply with its legal obligations as determined in the advisory opinion. Our clear opposition to the persistent violation of international law is essential for rescuing the peace process and bringing the parties back to a full and faithful implementation of their commitments under the road map, which should lead to the realization of the vision of two States, Israel and Palestine, living side by side in peace and security within recognized borders.
Mr. Gopinathan (India): I should like to convey our deep condolences to the Government and the people of Austria on the passing of President Klestil.
We join others in conveying our sympathies to the Government and the people of Nicaragua for the recent floods and the resultant loss of life and damage to property.
We welcome the opportunity to participate in this meeting of the resumed tenth emergency special session of the General Assembly to consider the advisory opinion rendered by the International Court of Justice in the case concerning the legal consequences of the construction of a wall in the occupied Palestinian territory.
We have noted that, in its advisory opinion, the International Court of Justice has ruled that the Israeli separation wall in occupied Palestinian territory is contrary to international law and should be dismantled. We call on Israel to take into account the advisory opinion of the International Court of Justice, in keeping with overwhelming international opinion on the matter and with a view to its early implementation.
The outbreak of violence in West Asia since September 2000 has claimed over 3,500 Palestinians and close to 1,000 Israeli lives, leaving countless more injured, physically and otherwise. Israel’s policies of closure, containment and curfew in the occupied Palestinian territories have not brought the two sides any closer to a settlement of their dispute. On the contrary, they have only exacerbated the plight and suffering of the Palestinian people and fuelled the violence afflicting the region.
The Secretary-General’s Special Coordinator for the Middle East Peace Process stated recently that the impact of the conflict on the population goes beyond deaths and injuries; the violence also affects the economies on both sides and the living conditions of Israelis and Palestinians alike, spreading the misery further and deeper. He quoted a recent World Bank report detailing the misery prevailing in the Palestinian territories, which describes the recession as the worst in history. He reports that the humanitarian situation in the occupied Palestinian territories continues to be severe, with unemployment at 28 per cent and half of the Palestinian population in the territories living below the poverty line.
India has maintained consistently that the only solution to the ongoing violence lies down the path of political dialogue and reconciliation. The absence of any progress in the political process is a matter of considerable concern. There is, however, no alternative but to persevere in the search for a peaceful solution. Recent opinion polls, both in Israel and in the Palestinian territories, indicative of widespread public opinion in favour of peace and reconciliation are signs of optimism that both the Government of Israel and the Palestinian Authority should heed and exploit.
Unfortunately, both sides have made no progress on their core obligations in the implementation of the Quartet road map. India calls upon the parties to fulfil their obligations under the road map, which, for the time being, represents the only framework towards attaining peace.
Mr. Al-Bader (Qatar) (spoke in Arabic ): I am grateful to you, Mr. President, for convening this meeting to discuss the advisory opinion of the International Court of Justice regarding the wall of separation being built by Israel.
I would like to begin by expressing our condolences to the Government and the people of Austria on the death of President Thomas Klestil. I also wish to express our condolences to the Government and the people of Nicaragua on the losses suffered as a result of the recent flooding in that country.
On 9 July, the International Court of Justice handed down an advisory opinion to settle the question of the wall of separation from the West Bank that Israel began to build two years ago, a wall that crosses the border with the West Bank in many places. The International Court of Justice determined that the wall is illegal and that it violates international law. The Court also said that Israel’s borders should return to where they were in 1967. Moreover, the Court has said that the building of the wall has had a negative impact on thousands of Palestinians, and that it seriously imperils their interests.
The Court also rejected any justification for Israel’s building of the wall. The Court stated that, in constructing the wall, Israel was in violation of international law. The Court also found that the wall was not being built to prevent Palestinian infiltration into Israeli territory but that it is designed to encompass the settlements built on the West Bank after the 1967 war.
We would like to emphasize that we did not protest when construction began, as the wall then generally followed the Green Line, although it did stray into Palestinian territory at some points.
The International Court of Justice was unambiguous as to the illegality of the wall of separation. It called upon Israel to take steps to halt construction, to dismantle what has already been built and to compensate those who have been harmed. The international community was also called upon not to recognize any result of the building of the wall.
The International Court of Justice confirmed the illegality of Israeli settlements built on Palestinian territory occupied since 1967, including in East Jerusalem. Of course, the Court’s opinion is an advisory one that is not binding under international law. Nevertheless, given the stature of the Court, it is a very important advisory opinion. It is also important in the context of international law and vis-à-vis the Charter of the United Nations. No Member of the United Nations may flout it. The opinion must be taken into consideration. It nullifies Israeli occupation and confirms its illegality. It also confirms the illegality of Israeli control over occupied Palestinian territory, including East Jerusalem. The Court also refers to the illegality of the separation wall being built on the West Bank, as well as on other occupied Palestinian land.
This is a victory for international law. We call upon Israel to respect the opinion and not to continue its practice of violating international agreements, which makes it impossible for peace to prevail in the region.
The State of Qatar calls upon the international community and the United Nations to compel Israel to abide by the advisory opinion and immediately to dismantle the wall and compensate all who have suffered losses. The building of the wall is an illegal undertaking. Qatar believes that a just, lasting and comprehensive peace will not come about until international obligations are met and until Palestinians are able to exercise their right to establish an independent State with its capital in Al-Quds.
Israel has not followed the path towards just and comprehensive peace. Rather, it is perpetrating acts of aggression that fly in the face of international decisions. The building of the wall of separation is merely an extension of its policy of aggression. Israel is attempting to impose a fait accompli. It is also ignoring the advisory opinion of the International Court of Justice, thereby both ignoring the rights of the Palestinian people and flouting the decision of a supreme legal body.
We call upon the international community, as represented here in the General Assembly, to adopt the draft resolution endorsing the Court’s advisory opinion. We would also like to say that we cannot accept any manoeuvring to permit a fait accompli imposed by force. The relevant resolutions of the Security Council must also be respected.
Mr. Kumalo (South Africa): My delegation wishes to express its appreciation for the reconvening of this tenth emergency special session in response to the advisory opinion of the International Court of Justice on the legality of the Israeli separation wall. We are pleased that the Court has finally silenced the old disagreements on whether the Court should exercise its jurisdiction by unanimously affirming its right to intervene on this matter.
We believe that our starting point in this debate today should be the recognition that there can be no sustainable political dialogue or peace until the fundamental rights and obligations of Palestinians and Israelis alike, including the right to security, are understood and respected by all. In other words, Israelis and Palestinians alike have the right to live in security, free from the daily threat of random violence. However, the situation in which one side enjoys more basic rights and freedoms than the other can no longer be sustained. There should be equality and protection before the law.
On 21 October 2003, this Assembly adopted resolution ES-10/13, tabled by the European Union, demanding that Israel stop and reverse construction of the wall in the occupied Palestinian territory. The resolution was adopted by an overwhelming majority of States. Israel ignored the will of the international community and accelerated construction of the wall, arguing that the wall was for self-defence purposes.
On 8 December 2003, the General Assembly passed the second resolution, ES-10/14, requesting an advisory opinion on the legality of the wall from the International Court of Justice. This time, Israel argued that the Court had no jurisdiction and that referring the matter to the Court would not be helpful to the peace process.
The International Court of Justice has now concluded that Israel cannot rely on an argument based on a right of self-defence or a state of necessity in order to preclude the wrongfulness of the construction of the wall. The opinion further states in the clearest terms possible that the construction of the wall and settlements is contrary to international law and international humanitarian law. According to the Court, Israel is therefore under a legally binding obligation to dismantle the wall and to provide compensation for all damage caused by its construction. The Court has also found that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall or to render assistance in maintaining the situation created by such construction. Furthermore, the Court reminded States parties to the Fourth Geneva Convention of their special obligation to ensure that Israel comply with international humanitarian law, as embodied in the Convention.
The advisory opinion ends the debate on whether the separation wall, which has led to so much senseless violence and divided and impoverished so many Palestinian communities, can be regarded as a legitimate security measure. This conclusion supported the argument made by the South African legal team at The Hague that if Israel were really interested in protecting its people, it would have built the wall on its own land rather than across Palestinian land.
It is now incumbent upon all law-abiding States to uphold the rules-based multilateral system by affirming the ruling of the Court and demonstrating that no State is above international law. The authority and integrity of the International Court of Justice are at stake here and we urge all member States to demonstrate the necessary political will and to support the decisions of the International Court of Justice.
The world cannot afford to turn a blind eye to the situation in the Middle East. At the recent United Nations African Meeting in Support of the Inalienable Rights of the Palestinian People held in Cape Town, South Africa, President Mbeki said,
Mr. Aboul Atta (Egypt) (spoke in Arabic ): The General Assembly meets today to continue a mission it began seven months ago, when it adopted by majority vote a resolution seeking the opinion of the International Court of Justice on the legality of the construction by Israel, the occupying Power, of a wall inside the occupied Palestinian territories, including East Jerusalem.
We reconvene today the tenth emergency special session, neither to deplore or denounce as usual Israeli outlaw practices, nor to reaffirm the right of the Palestinian people to establish its independent State and to live in peace and security in accordance with the vision of two States set forth in the road map. We meet here today to declare, on behalf of the international community, our full respect for the principles of international law and to assert that we hold sacred the word of truth, law and international legitimacy as laid down by the highest legal organ of the international system.
The advisory opinion of the International Court of Justice, issued on 9 July, reflects not only the opinions of its judges, the highest-ranking men of law, renowned for their professionalism and integrity; it also reflects the conviction of the international community that the construction of the wall is illegal and that it should be halted and the wall dismantled forthwith. It is the final word. The wall is a wall of segregation, of acquiring the territories of others by force, of siege, of obliterating the aspirations of hundreds of thousands of Palestinians, of imposing a fait accompli, and of pre-empting the results of the final status negotiations in the interests of one side and at the expense of the other.
The opinion of the International Court of Justice affirms the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Times of War to the occupied Palestinian territory. It also confirms the obligation of Israel, the occupying Power, to dismantle the wall and to make reparations for damage caused to Palestinians. It confirms that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. Finally, the opinion stresses the need for the General Assembly and the Security Council to consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall.
Therefore, the international community, represented by the General Assembly, is called upon to recognize the need for respect for this opinion and to monitor Israel’s implementation of its obligations. The Republic of Egypt looks forward to the adoption of the draft resolution by a large majority of Members. The draft resolution reaffirms the international community’s respect for the opinion of the International Court of Justice and seeks to protect the political and human rights of hundreds of thousands of Palestinians.
We must begin the sought-for, true revitalization of the role of the United Nations by ensuring respect for its resolutions and by enhancing the role of its various organs. Today’s event is one of the most important, and perhaps most sensitive, tests of our resolve to move forward in protecting this edifice — the United Nations, its Charter and the principles on which it is based. Egypt believes the only way to maintain international peace and security and to achieve progress and prosperity for humanity lies in respect for law, reverence for its provisions and recognition of the right of others to live in peace and security.
Some might believe that calling upon the Israeli Government to cease forthwith the construction of the wall and to dismantle the parts already built may somehow cloud the clear days ahead for the region: Israel’s intentions to withdraw from the Gaza strip and the initiatives aimed at attaining that objective. We should like to stress that strengthening the confidence-building measures between the Palestinian and Israeli sides will create the momentum needed to help create the positive environment of which we speak. In our view, Israel can begin that process by halting the construction of the wall and moving forward in implementing its planned withdrawal from Gaza as first steps towards the implementation of the road map.
The President: We have heard the last speaker in the debate on this item for this morning.
The meeting rose at 1.05 p.m.
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