ICJ: 48 STATEMENTS FILED IN FENCE PROCEEDING

UNCLAS SECTION 01 OF 02 THE HAGUE 000290

SIPDIS

DEPARTMENT FOR L - TAFT/SCHWARTZ, L/UNA -
MATHIAS/LAMOTTE/COGAN

E.O. 12958: N/A
TAGS: AFIN AORC ICJ
SUBJECT: ICJ: 48 STATEMENTS FILED IN FENCE PROCEEDING

REF: A. WWW.ICJ-CIJ.ORG/ICJWWW/IDOCKET/IMWP/IMWPFRAME .HTM


B. THE HAGUE 251

C. PARIS 690


1. (SBU) Summary: The International Court of Justice (ICJ)
received forty-eight written statements by its deadline of
January 30 in the advisory opinion proceedings concerning
"the legal consequences of the construction of a wall in the
occupied Palestinian territory" (the Fence Case). While the
statements varied in their attention to the legality of the
fence, the forty-four states were almost evenly divided
between those which argued that the Court should not provide
an opinion in the case and those that argued that the Court
should find the Fence to be illegal under international law.
While the names of all of the submitting parties --
forty-four states, the United Nations, Palestine, the Arab
League, and the Organization of the Islamic Conference (OIC)
-- may be found at the ICJ website (ref a),it is the Court's
intention that the written statements themselves remain
confidential at least until February 23, the date on which

SIPDIS
the hearings in the case are scheduled to commence. The UN
submitted what it described as a factual statement but
advised that it will not participate in the oral hearings.
The Court also rejected (13-1) Israel's challenge to the
participation in the case of Egyptian Judge Nabil Elaraby.
End summary.


2. (SBU) On Tuesday, February 3, the ICJ Registry distributed
to all UN Member States represented in The Hague copies of
the statements submitted in the Fence Case (full set sent by
DHL to L/UNA). Among the submissions, there are several of
note:

-- The UN submitted "factual information" in order "to
supplement" the Secretary General's report of November 24,
2003 (A/ES-10/248). At the same time, a cover letter from
the SYG informed the Court "that the United Nations will not
present oral statements and comments to the Court during the
hearings" of the case.

-- Palestine submitted a three volume statement consisting of
an approximately 300 page written statement, an annex of
several maps and photographs of the fence, and fourteen
documentary annexes. It asks the Court to find, among other
things, that Israel is an occupying power under the Fourth
Geneva Convention; that Israel "has no right to construct and
operate the Wall"; that the fence violates international
humanitarian and human rights law; that its construction
involves unlawful confiscation of property; and that it is
discriminatory. Describing Israel's actions as "grave
breaches" of international law, it further asks the Court to
find the fence violates Palestinian rights of
self-determination and that Israel is bound to cease
construction of and dismantle the fence, compensate for
damage and injury, and "heed the will of the international
community." Palestine also argues that other States are
obliged to cooperate so as to bring an end to the fence.

-- Many of the statements are strongly supportive of the
Palestinian submission and argue that the Court should find
the fence to be illegal under international law. These
include Egypt, Jordan, the Arab League, the OIC, Saudi
Arabia, Syria, North Korea (which likens the fence to the
North-South demarcation line on the Korean peninsula),Cuba,
Malaysia, Pakistan, South Africa, Indonesia, Morocco, Yemen,
Lebanon. Several others submitted short (one or two page)
submissions reaffirming views they expressed during UN
General Assembly (UNGA) debates in support of the Palestinian
position.

-- Israel submitted two volumes consisting of an
approximately 120 page written statement and a documentary
annex. Its argument focuses on the propriety of the ICJ
addressing the request submitted by the UNGA. The submission
focuses on issues relating to what it sees as the "fairness"
of the proceedings as well as the jurisprudence of the Court,
which, it says, should lead the Court to find either that it
lacks jurisdiction over the request or that it must decline
to answer the request on grounds of propriety.

-- While no other state defends the legality of the fence,
several submitted statements arguing that the Court should
decline to issue an opinion for reasons of propriety (though
some added that, in their view, the fence is
counterproductive or illegal). These include, in addition to
the USG (ref b),the United Kingdom, Australia, Canada, the
Czech Republic, France (see below),Spain, the Netherlands,
Greece, Norway, Japan, Germany, Italy, Micronesia, Marshall
Islands and Palau.

-- As expected (ref c),France filed a statement providing
its views on the illegality of the fence. At the same time,
it associates with the position of the European Union, which
Ireland, as President of the EU, explained to the Court as
follows: "the EU believes that the proposed request for an
Advisory Opinion . . . is inappropriate. It will not help
the efforts of the two parties to relaunch a political
dialogue."

-- Russia submitted a statement which essentially quotes its
own statement made during the UNGA vote on the advisory
opinion, adding its belief "that any response of the Court to
the General Assembly's request, whether or not it decides to
give an advisory opinion, should not hamper or create
additional obstacles for (a) negotiating process or make the
two-State solution impossible."

-- Switzerland submitted a statement in which it found no
decisive reason for the Court to refuse to issue an opinion
in the case and focused on the applicability of instruments
of international human rights and humanitarian law in the
territories.


3. (SBU) On January 30, the Court also rejected in a 13 to 1
decision an Israeli request that Egyptian Judge Elaraby not
participate in the case due to his previous involvement in
similar issues while posted to the Egyptian Mission to the UN
in New York. The Court found that Israel's request did not
point to any instance of Judge Elaraby having expressed a
view on the questions posed to the Court in this case. As a
result, it found no basis "to preclude Judge Elaraby from
participating in the present case." Judge Buergenthal
(American) dissented.
SOBEL