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:

 

 

Mr. President,

 

            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.

 

Mr. President,

 

            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.  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 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.

 

            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.

 

Mr. President,

 

            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, “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”. 

 

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.

 

Mr. President,

 

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.      

 

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.

 

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”.

 

            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.

 

            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)”.

 

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.”

 

            The Court’s position on this issue – on the basis of international law - is conclusive.  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.

 

            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”.

 

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”.  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.

 

            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.  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”.

 

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”.  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.”  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.”

 

Mr. President,

 

            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.

 

            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.

 

            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.

 

            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.

 

Mr. President,

 

            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.  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.

 

Mr. President,

 

            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.

             

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.  Some preparations should be undertaken at present.

 

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.

 

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.

 

It is obvious that we must anticipate action in the Security Council.  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.   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.

 

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.  It remains our hope, of course, that this will not materialize. 

 

Mr. President,

 

            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.

 

            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.

 

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.

 

            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.  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.

 

Mr. President,

 

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.  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.

 

Mr. President,

 

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.

 

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.

 

I thank you, Mr. President.