General Assembly debates measures after ICJ’s ruling on the wall

United Nations General Assembly in New York


The United Nations General Assembly today discussed measures to end Israel’s construction of a separation barrier in and around the West Bank after the International Court of Justice (ICJ) declared it to be illegal.

The Assembly met in a resumption of its tenth emergency special session on illegal Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territory following a request of the Arab Group.

Last week the ICJ - the UN’s principal judicial organ - issued an advisory opinion saying the separation barrier was illegal and that construction must stop immediately. The Court also said Israel should make reparations for any damage caused, and that the Assembly and the Security Council should consider what steps to take “to bring to an end the illegal situation” created by the situation.

Speaking at the outset of today’s debate, the Permanent Observer of Palestine, Nasser Al-Kidwa, said the ICJ’s advisory opinion constituted a strong, clear and comprehensive determination of the applicable rules of international law, as well as the legal obligations that had arisen from breaches of that law committed by Israel as a result of its construction of the separation wall.

He said a draft resolution before the Assembly had a two-fold purpose: acceptance of the advisory opinion and a call for compliance with international legal obligations from Israel and from other Member States. In the event of non-compliance, States must be ready to undertake actions consistent with their legal obligation, including actions against all settlement activities as well as sanctions against companies or entities involved in the wall’s construction.

Ambassador Zeid Ra’ad Zeid Al-Hussein of Jordan, speaking on behalf of the Arab Group of States, said his delegation was planning to circulate a draft resolution with the aim of not only having the Assembly react positively to the ICJ’s opinion but to see that the ruling’s salient points were reprinted in any subsequent resolution. By supporting the Court’s opinion, the Assembly would show the world that despite the realities of political power and expedience, justice, when sought, could be found.

Ambassador Dan Gillerman of Israel said his country, together with a large number of States, had not supported the request for the ICJ’s advisory opinion because the initiative was counterproductive and harmful. The General Assembly had acted wrongly, politicizing the Court and turning a judicial organ into an actor on the political stage. Now, all those States that had expressed concern about the misuse of the ICJ must be wary of allowing the process to dictate the international agenda, he said.

Israel recognized that it had responsibilities, Ambassador Gillerman said, but it was not alone. The Palestinian side must abandon terror as a strategic choice; that straightforward measure would lead to removal of the fence. In the months since the advisory opinion had been requested, it had become clear that the fence worked. There was now a genuine chance to restart the Road Map as a result of the disengagement plan, he said, crediting the fence’s security benefits for creating the new opportunity.

Ambassador Paul Badji of Senegal, speaking as the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People, said the ICJ decision was an historic one and if applied fully in good faith, would set the course for the international community to help re-launch the negations between the two sides towards implementation of the Road Map peace plan. Moreover, the Committee would reaffirm the continued leading role of the United Nations in efforts to resolve the Palestinian-Israeli conflict until the objectives of the Road Map had been attained.

Speaking on behalf of the Non-Aligned Movement, Ambassador Mohd Radzi Abdul Rahman of Malaysia said the bloc maintained that a just, lasting and comprehensive settlement to the Israeli-Palestinian conflict could only be ensured on the basis of relevant Security Council resolutions. The General Assembly must muster the political will necessary to respond to the present situation. As the consequences of allowing the construction of the wall to continue on its present route were fearful, adoption of the draft resolution would send a strong and clear message to Israel and express solidarity with the Palestinian people, he said.

According to a spokesperson for the Assembly’s President, a vote on the revised draft resolution circulated today is scheduled only for Monday.

Background

The General Assembly today resumed its tenth emergency session on illegal Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territory to debate the recent advisory opinion of the International Court of Justice (ICJ), which concerns the legal consequences of the Israeli-built security barrier under construction in the West Bank.

Last December, the resumed emergency session unanimously adopted a resolution requesting the Court’s opinion which concerns the legality of the wall.  By that text, the Assembly decided to “adjourn the tenth emergency special session temporarily and to authorize the current President of the General Assembly to resume its meeting upon request from Member States”.

The Court –- the United Nations highest judicial body — handed down its non-binding ruling last Friday, 9 July, declaring that the wall was illegal, that Israel must dismantle its standing portions and that Israel must provide reparations for damages caused by the construction.  It also suggested that the General Assembly and the Security Council might consider further action.

The Secretary-General transmitted the Court’s ruling to the Assembly last week, and today’s meeting was subsequently requested by the States members of the League of Arab States (document A/ES-10/274), and the Chairman of the Coordinating Bureau of the Non-Aligned Movement (NAM) (document A/ES-10/275).

Statements on Advisory Opinion

NASSER AL-KIDWA, Permanent Observer for Palestine, said the International Court of Justice’s advisory opinion, delivered on 9 July 2004, constituted a strong, clear and comprehensive determination of the applicable rules of international law, including international humanitarian and human rights law, as well as the legal obligations, which had arisen from breaches of international law committed by Israel as a result of its construction of the separation wall.  The opinion represented a pivotal development, bringing international law back to the forefront on the question of Palestine and the Israeli-Palestinian conflict.  It was a victory not only for the Palestinian people, but also for all the region’s peoples and all those who believed in the rule of law and strove to uphold the reputation and integrity of the United Nations.

In addition to affirming that the powers and responsibilities of the United Nations in matters of peace and security made the construction of the wall a matter of direct concern to the Organization, the Court had determined that the wall’s construction was contrary to international law.  Among the provisions of international humanitarian and human rights law applicable to the situation, the Court had cited The Hague Regulations, the four Geneva Conventions, the International Conventions on Civil and Political Rights, and Economic, Social and Cultural Rights and the Convention on the Rights of the Child.

Reviewing the opinion’s contents, he noted that the Court had rejected Israel’s “security-based” justifications for the wall’s construction.  Israel could not rely on a right to self-defence nor on a state of necessity to preclude the wrongfulness of the wall’s construction.  And, among the legal ramifications of the construction, the Court had determined that Israel had an obligation to cease construction of the wall, to dismantle those parts already constructed and to repeal or render ineffective all legislative and regulatory acts related to its construction.  It must also make reparation for all damage caused by the construction.  The broader community of States had the obligation not to recognize the illegal situation, which had resulted from the wall’s construction, nor to render aid or assistance for its maintenance.  All States party to the Fourth Geneva Convention had the additional obligation to ensure compliance by Israel with the provisions of that Convention.

The draft text presently before the General Assembly, he explained, had a twofold purpose:  acceptance of the advisory opinion; and a call for compliance with international legal obligations, as set out by the opinion, from Israel and from other Member States.  In the event of non-compliance, States must be ready — individually, regionally and collectively — to undertake actions consistent with their legal obligation, as determined by the Court.  Those included actions against all settlement activities and settlement products, as well as sanctions against companies or entities involved in the wall’s construction.

It was clear, he said, that the Security Council’s further involvement in such actions would be necessary.  Israel had already declared its rejection of the Court’s authority and had continued construction of the wall.  The Security Council could not be absolved of its responsibility, irrespective of the threat of veto.  The threat of veto would not thwart those determined to uphold international law.  Successive vetoes, he added, had contributed nothing to the search for peace; instead, they had harmed the integrity of the system and engendered criticism of the Organization’s credibility and efficacy.  Threatening to use the veto in regard of the advisory opinion was tantamount to attacking the system.

In conclusion, he stressed that the “Road Map”, which enjoyed international consensus and support, could neither survive nor proceed unless construction of the wall ceased.  The wall was making the two-State solution to the Israeli-Palestinian conflict impossible to achieve.  In that regard, the Quartet must take a clear position.  Moreover, proposals or developments such as the occupying Power’s withdrawal from Gaza must be carried out as a part of the Road Map.  That required that Israel take similar steps in the West Bank and would, of course, also require, and be contingent upon, cessation of the wall’s construction and removal of its existing parts.

ZEID RA’AD ZEID AL-HUSSEIN (Jordan) speaking on behalf of the Arab Group of States, said the Assembly session today was an apt response to the clear opinion of the International Court of Justice.  Despite media distortion of the Court’s ruling, everyone should recognize that the opinion was law, nonetheless.  The international community must respect the opinion and the Assembly must now set the way forward.

Previous resolutions adopted by the Assembly, as well as the Security Council, had consistently declared Israel’s occupation of Palestinian territories illegal.  But for more than 37 years, Israel has defied that assertion, he said.  For decades the Assembly had confirmed the right of the Palestinian people to self-determination under the Charter while Israel had spared no effort to suppress that right with increasingly illegal actions, up to and including the construction of the wall.  The Court’s ruling has mad it clear that the right of the Palestinian people to self-determination was non-negotiable, he said.

Even though the Court had ruled that construction of the wall amounted to de facto annexation of Palestinian lands, Israel had determined to continue its illegal policies.  The Court did not accept Israel’s reasons for building the wall, nor the creative legal terminology it had employed to describe the land it was confiscating.  The Court had declared that the wall was illegal and must be dismantled.  It also ruled that reparations must be made for the damages caused.  Those were not theoretical musings, but principles by which the international community could uphold the rule of law.

His delegation was planning to circulate a draft resolution to the Assembly later today with the aim of not only having the body react positively to the Court’s opinion, but to see that the ruling’s salient points were reprinted in any subsequent resolution.  The text would call on Israel to dismantle the parts of the wall already built, repeal legislative and administrative measures and repair damages to land and homes during the construction.  By supporting the Court’s opinion, the Assembly would show the world that, despite the realities of political power and expedience, justice, when sought, could be found.  The Court had confirmed that the cause of the Palestinian people was a just one.

DAN GILLERMAN (Israel) said the persistent campaign carried out by Palestine to manufacture an alternate world in which there was but one victim and one villain, one in which there were Palestinian rights but not responsibilities and Israel responsibilities but not rights, had contributed little to United Nations credibility and nothing to the cause of peace.  Instead, last December the International Court of Justice had been dragged into that virtual reality and asked to answer a distorted question, devised to place the response to terrorism on trial without questioning the terrorism itself.  The purpose had been to create a process so perverted that the Court would be compelled to ignore the suffering of innocent Israelis and the obligations of the Palestinian side to prevent terrorism.  Sadly, that aim had been realized last Friday.

Together with a large number of States, Israel had not supported the request for the advisory opinion, he stressed, as it could not grant legitimacy to a tainted procedure, nor fully engage in a counterproductive and harmful initiative.  The General Assembly had acted wrongly, politicizing the Court and turning a judicial organ into an actor on the political stage.  Now, all those States that had expressed concern about the misuse of the advisory process must be wary of allowing the process to dictate the international agenda.  It would be a grave mistake to allow an intensely political manoeuvre to undermine prospects for progress on the ground.  Equally dangerous, the Assembly’s action might be seen to reward the misguided and politically motivated recourse to the Court.

Israel was not the first State, nor would it be the last, to have a difference of opinion with a position taken by the Court, he said.  While retaining respect for the institution of the Court, his country had been dismayed to see that the 60-plus-page opinion had addressed neither the brutal terrorism faced by innocent Israelis, nor the ongoing refusal of the Palestinian leadership to bring that terrorism to an end.  That terrorism was the very motivation for construction of the security fence, which made the Court’s silence deafening.  The Court’s omission was legally inexplicable and morally inexcusable, yet Israel had been urged to put more faith in international institutions and actors, to trust their objectivity and fairness.

Like every measure that aimed to prevent terrorism, the security fence raised complex legal and humanitarian issues, he acknowledged.  The fence and its route were under a constant process of review and change, and every affected individual -– Palestinian or Israeli -– had the right to petition Israel’s Supreme Court.  As recognized by the Supreme Court in its 30 June decision, that the fence did not follow the route of the “Green Line” served as evidence that it was based upon justifiable security concerns, rather than inappropriate political ones.  The Supreme Court had laid out a proportionality test, which would be used to determine the proper balance between the fence and the rights of those affected by it.

Israel would comply fully with the decision of its Courts, he stressed.  Following the Supreme Court’s judgement, the Government had announced that it would re-examine the entire route to ensure compliance with international law.  Yet no account had been taken of that position by the International Court of Justice.  Instead, the Court had relied upon inaccurate information, which had misrepresented Israel’s legal position.  Moreover, the views expressed by the Court did not relate to the legal authority to erect a fence in principle, but to a “specific course”, which the Court had presumed to exist.  Examining the route’s legality demanded a proportionality assessment and required specific knowledge of topographical, security, environmental and humanitarian considerations at each section of the fence.  So complex an issue could not be addressed with so little opportunity for forensic examination, nor could definitive conclusions be reached on an obviously inadequate evidentiary record.

Israel recognized that it had responsibilities, he said, but it was not alone.  The Palestinians, who called upon his country to comply with a non-biding opinion, must comply with their binding legal obligations.  The Palestinian side must abandon terror as a strategic choice; that straightforward measure would lead to removal of the fence.  In the months since the advisory opinion had been requested, it had become clear that the fence worked.  And in closing the avenues of terror, the path to peace could be reopened.  There was now a genuine chance to restart the Road Map, as a result of the disengagement plan.  That opportunity had been created by the fence’s security benefits.  The General Assembly should today correct the error made last December and make a relevant and constructive contribution to ending violence, terrorism and incitement, and promoting peace, dignity and prosperity.

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