Statement by Dr.
Nasser Al-Kidwa, Ambassador, Permanent Observer of Palestine to the United
Nations, before the resumed Tenth Emergency Special Session of the General
Assembly on “Illegal Israeli Actions in Occupied East Jerusalem and the rest
of the Occupied Palestinian Territory”, 16 July
2004:
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Mr. President,
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I wish to begin by thanking you for all of your efforts in wisely and
capably guiding the work of the General Assembly and to thank you for
responding positively and in a timely manner to the request to reconvene this
tenth emergency special session.
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Mr. President,
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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 august organization in international relations. One week ago, on 9 July
2004, the International
Court of Justice (ICJ) 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. Â 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.
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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 ICJ 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 to uphold the
authority and integrity of the United Nations system.
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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 honor 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 U.N. system and the impact
that this important Opinion will have on the Israeli-Palestinian conflict and
beyond.
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Mr. President,
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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. Â In fact, the Court
clearly determined the matter to be of relevance to the Assembly, stating
that, “given the powers and responsibilities of the United Nations in
questions relating to international peace and security, it is the Court’s view
that the construction of the wall must be deemed to be directly of concern to
the United Nations”.Â
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Yet, we are not here to debate or to reach
conclusions on the nature or status of the Wall, for that debate has been
concluded. The Court has
deliberated on the matter and it has spoken. The Court’s conclusions must represent
the final word on this matter. It
has already determined that “the construction of the wall being built by
Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to
international law.” We are here
to address the legal consequences of this matter and to take action in this
regard.
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Mr. President,
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In its Advisory Opinion, the Court - the principal
judicial organ of the U.N. - 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.     Â
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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 it necessary to briefly
draw attention to the Court’s important and authoritative
determinations.
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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, has been violated by Israel. The Court concluded that, “the
construction of the wall and its associated regime create a ‘fait accompli’ on
the ground that could well become permanent, in which case, and
notwithstanding the formal characterization of the wall by
Israel, it would be tantamount to de facto
annexation”.
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On this point, the Court prefaced its consideration of the matter with
an examination of the status of the territory in question, dealing with the
issue clearly and decisively. The
Court found that the area east of the 1949 Armistice Line (the ‘Green Line’)
and the former eastern boundary of Palestine under the Mandate, including
East
Jerusalem, was occupied by
Israel in 1967 and, under international law, considered to
be occupied territory. The Court
concluded that subsequent events have done nothing to alter this situation and
that this territory, including East Jerusalem, remains occupied and that
Israel continues to have the status of occupying Power. It is essentially in that territory,
the Court found, that Israel has constructed or plans to construct the Wall in
violation of international law.
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In this connection, the matter of
Israel’s unlawful colonization of the 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 in so far as they are
unquestionably relevant to the construction and planning of the Wall. The Court stated that “since 1977,
Israel has conducted a policy and developed practices involving the
establishment of settlements in the Occupied Palestinian Territory, contrary
to the terms of Article 49, paragraph 6” of the Fourth Geneva Convention, and
that, as such, “the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem) have been established in breach of international
law”.  In relation to the
Wall, the Court determined that “the wall’s sinuous route has been traced in
such a way as to include within that area the great majority of Israeli
settlements in the Occupied Palestinian Territory (including East Jerusalem)”.
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Even Judge Buergenthal, who voted against the
Court’s decision to comply with the request for an Advisory Opinion, shared
the Court’s conclusions about the applicability of international law to the
Occupied Palestinian Territory and, with particular regard to Article 49 of
the Fourth Geneva Convention, Judge Buergenthal stated: “I agree that this
provision applies to the Israeli settlements in the West Bank and that their
existence violates Article 49, paragraph 6. It follows that the segments of the
wall being built by Israel to protect the settlements are ipso facto in
violation of international humanitarian law.”
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The Court’s position on this issue – on the basis of international law
- is conclusive. Â There can be no
further question or doubt as to the illegal status of the Wall, or the
settlements for that matter, that Israel has been building - and continues to build - in the
Occupied Palestinian Territory, including East Jerusalem.
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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 “the obligation to respect the right of the Palestinian people to
self-determination, and certain of its obligations under international
humanitarian law”. The Court
concluded, inter alia, that Israel’s construction of the Wall “severely impedes the
exercise by the Palestinian people of its right to self-determination, and is
therefore a breach of Israel’s obligation to respect that
right”.
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In its Opinion, the Court also observed that, with
regard to principle of the right to self-determination - a right of all
peoples enshrined in the Charter, reaffirmed by the General Assembly and
reaffirmed by International Covenants - “the existence of a ‘Palestinian
people’ is no longer an issue”.Â
Indeed, the inalienable and legitimate right of this people to
self-determination cannot continue to be questioned or rejected and its
violation must be ceased.
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The Court also determined that “the construction of the wall and its
associated regime has led to the destruction or requisition of properties
under conditions which contravene the requirements of Articles 46 and 52 of
the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva
Convention.” It further concluded
that the changes being caused to the demographic composition of the
Occupied Palestinian Territory as a result of the construction of the Wall and
imposition of its associated regime, in as much as they are contributing to
the departure of Palestinian populations from certain areas, are in
contravention of Article 49 of the Fourth Geneva Convention. Â And, in terms of human rights
instruments, the Court found that the Wall and its regime impede the liberty
of movement and impede, inter alia, the right of the Palestinian people
to work, to health, to education and to an adequate standard of living. 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”.
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Prior to turning to its determination of the legal
obligations as a result of these 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”. Â 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.” Â 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”. 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.”
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Mr. President,
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In 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.
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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 reparation for all
damage caused by the construction of the Wall.
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In terms of the legal obligations for States, the Court concluded that
all States are under 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
an additional obligation to ensure compliance by
Israel with the Convention.
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Lastly, the Court concluded that the United Nations, and especially 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.
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Mr. President,
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I must reiterate before this Assembly, that the conclusions of the ICJ
on the Wall are non-negotiable; they are definitive and we will proceed from
this point forward. Â 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.
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Mr. President,
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On 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 by 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, a responsibility explicitly referred to by
the Court.
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The aim of the draft resolution before the Assembly
is two-fold: acceptance of the Advisory Opinion and a call for compliance with
international legal obligations, as set out by the Opinion, by
Israel, the occupying Power, and by Member States. It is our strong hope that this step
will be accepted by all Member States in fulfillment of their Charter
obligations. We must also set the
stage for further actions, as stated by the Court, to end the current illegal
situation, in case of non-compliance, by the U.N. and by the High Contracting
Parties to the Fourth Geneva Convention.Â
Some preparations should be undertaken at
present.
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At a later stage, in the case of non-compliance by
Israel with its legal obligations, we expect States,
individually, regionally and collectively at the U.N., to undertake actions
consistent with their legal obligations, as determined by the Court. This should include, inter
alia, actions against all settlement activities and settlement products as
well as sanctions against companies or entities involved in the construction
of the Wall and involved in other unlawful activities in the
Occupied Palestinian Territory, including the settlements. While we are now in the early stages
of following-up the Advisory Opinion, it is not too early to begin thinking
about such options, particularly in light of
Israel’s immediate negative response in this
regard.
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In accordance with the Charter and consistent with
the Court’s ruling, it is clear that further action would, of course, also
entail the involvement of the Security Council, and we intend to pursue
that. In this regard, the timing
for 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.
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It is obvious that we must anticipate action in the
Security Council.Â
Israel has already declared its rejection of the Court’s
authority and of the Advisory Opinion and has declared its intention to
continue constructing the Wall in total disrespect for the Court and the
Opinion and in violation of its legal obligations under international law as
concluded therein. We shall not
exempt the Security Council of 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
U.S. veto. Â Â 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 ICJ, as we did not cower but
continued instead to seek the implementation of the law within the U.N.
system.
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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 complicated that search
excessively. Moreover, these
vetoes have harmed the integrity of the system and engendered a growing
cynicism in international relations as to the credibility and efficacy of this
organization. With regard to the
threat to veto a resolution concerning respect of the Advisory Opinion and the
legal obligations determined therein, we believe this would be tantamount to
attacking the system and a formal declaration of responsibility. Â It remains our hope, of course, that
this will not materialize.Â
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Mr. President,
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Israel’s arrogant declarations of disdain and 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
level. 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 must not only be
deemed disrespectful of the Court and its Opinion, but must be considered as
blatant contempt for the rule of law in international relations that entails
clear liability.
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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 U.N. 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 taken vis-à-vis the
ICJ.
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We, nevertheless, hope 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, namely
respect of the Advisory Opinion and compliance with the obligations of the
occupying Power. We have chosen
to proceed slowly precisely for this reason. We want to allow for more time to
achieve this result, during which time we hope that different and positive
dynamics will come into play. We
also hope that during this time the
U.S. will find itself able to take the right position
with regard to this matter.
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As for the Palestinian people, the Advisory Opinion has been having a
positive - and not a negative - impact on the Palestinian society. People are seeing that international
law can bring them justice. In
return, of course, the law and compliance with the law 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, essential for the
growth and progress of any society.Â
Without a doubt, this Advisory Opinion provides an enormous lesson of
the primacy of the law and its rule, and everyone, especially in the region,
must see this.
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Mr. President,
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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 this regard.Â
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. This 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
parts.
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Mr. President,
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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 resolution with the intention of giving a chance for compliance
with the Opinion and for serious efforts to be undertaken 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.
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We thus hope that all Member States will firmly
support the draft resolution as the first important step in that
direction.Â
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.
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I thank you, Mr.
President.