ICJ FENCE PROCEEDINGS WRAP-UP

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 000504

SIPDIS

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

E.O. 12958: DECL: 02/27/2014
TAGS: AFIN AORC ICJ
SUBJECT: ICJ FENCE PROCEEDINGS WRAP-UP

REF: A. OLC/HAGUE-STATE/L EMAIL REPORTS

B. HTTP://212.153.43.18/ICJWWW/IDOCKET/IMWP/IMWP FRAM-
E.HTM

1.(SBU) Summary: From February 23 to 25 the International
Court of Justice (ICJ) heard arguments from twelve states,
two organizations and Palestine in its case assigned the
title, "Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory." In general, the
atmosphere in the ICJ's courtroom at the Peace Palace was
judicial -- as in the usual case, all fifteen judges sat in
their black robes and white collars on a raised dais and
listened patiently, and silently, while advocates pled their
arguments below them. The general decorum maintained
throughout, with the most strident rhetoric reserved for the
German and French law professors who presented arguments for
the Arab League and Organization of the Islamic Conference
(OIC),respectively, on the final day. Even outside the
Peace Palace, demonstrators on both sides of the fence made
their cases without incident, the Dutch having prepared
efficiently for the occasion by blocking traffic in the area
and staggering the times protesters could gather. Attention
now turns to the deliberations and the possibility of an
advisory opinion being issued in the near-term. End summary.


2. (SBU) The ICJ held its long-awaited hearings on the United
Nations General Assembly's request for an advisory opinion as
to the legal consequences of the security barrier (Israel's
term) or "the Wall" (Palestine's term) Israel is constructing
in the West Bank. The media tents and protesters outside did
not change the basic fact that judicial proceedings were
being held in the Peace Palace, and the atmosphere inside
approximated the atmosphere of other proceedings embassy
legal officers have attended in recent years (except for the
larger than usual attendance of approximately 250 people in
the courtroom). On the first day, Palestine was granted the
whole morning (three hours) to present its case, and it did
so, following the introduction of Palestinian UN Permanent
Representative Nasser al-Kidwa, with the assistance of
American, British, Australian, Egyptian and Belgian
advocates. Following Palestine were, on the 23rd, South
Africa, Algeria, Saudi Arabia, Bangladesh; on the 24th
Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia,
Senegal; and on the 25th Sudan, the Arab League and the OIC.
Apart from Palestine, all delegations were provided
forty-five minutes each to make their arguments. In the
courtroom were dozens of representatives of governments which
had submitted written comments to the Court in January,
including an official Israeli delegation.


3. (SBU) Palestine led off with a short but effective factual
presentation, complete with slides of maps and photographs,
and throughout the hearing other participants echoed the
factual presentation. Although the advocates tended to
emphasize different aspects of the question, three principal
categories of arguments were presented throughout the
hearing: first, that the UNGA had the competence to make the
request and the ICJ has no grounds on which to decline to
render an opinion; second, that the Fence is being built on
occupied territory to which the Fourth Geneva Convention on
the Protection of Civilians applies and, on this ground and
others, violates various provisions of international
humanitarian and human rights law; and third, that legal
consequences flow from these violations for Israel, other
states, and international organizations, particularly the
UNGA and the UN Security Council. A detailed summary of the
individual arguments may be found in ref e-mails, while the
transcripts of the proceedings may be found at the ref
website.


4. (SBU) While the refs detail the arguments presented,
several themes may be identified as dominating the proceeding:

-- ICJ Jurisdiction: All argued in favor of the Court's
jurisdiction, the UNGA's competence to request the opinion,
the impossibility of the Court refusing to issue an opinion,
and the propriety and value of the Court doing so.

-- The Fence itself: Most of the delegations argued that the
problem was less a security fence in general but "the
specific characteristics" of the current fence. Consistently
advocates said that they would have no difficulties accepting
a fence built either on the green line (the 1949 armistice
boundary) or on Israeli territory. Most focused attention on
how the fence deals with settlements, and the fence was
almost universally derided as an attempt to annex occupied
territory, Israel's assertion of a "temporary" barrier
dispatched as insincere or untrue. One advocate alluded to
press reports that the Israeli government would alter the
route of the fence as irrelevant to the proceedings. While
most employed fairly straightforward descriptions, some
resorted to sharp rhetorical barbs, such the Arab League's
advocate, Professor Michael Boethe, who referred to
"fragmentation of the Palestinian space" as
"Bantustanization."

-- Terrorism: Many of the advocates claimed to understand
Israel's legitimate concerns about terrorism. Several,
including Palestine's al-Kidwa, urged the Court to
distinguish between attacks on Israelis within the Green Line
and attacks in the territories against "the occupation",
settlers and soldiers. Jordan's Prince al-Hussein condemned
suicide attacks as "nothing less than horrific" but also
observed that such bombings "must be weighed against almost
four decades of Israel dominating and, by virtue of its
occupation, degrading, an entire civilian population." The
OIC's advocate was rather strident on this score, with
Israeli and UK official observers believing she tiptoed on
the line of justifying suicide bombers.

-- The role of the UNGA: Most delegations made the argument
that the UNGA bears, in one advocate's phrase, "a permanent
responsibility over the question of Palestine." One noted
that the UNGA's role in Palestine predates Israel's
existence, and several made reference to Palestinian
territorial rights on the basis of the 1947 UNGA resolution
(181) which partitioned the territory for a Jewish and Arab
state in British Mandatory Palestine. For many, the question
of the UNGA role had particular relevance in considerations
as to what the UNGA would be entitled to do in the event the
ICJ finds the fence to violate international law. Several
delegations bemoaned the fact that the Security Council had
not taken 'effective' action on the Fence issue, giving the
UNGA a further basis to take action on its own behalf.

-- The impact on the peace process: Advocates took strong
issue with the argument, presented in writing by the UK, USG,
Canada, Australia and several others, that an opinion would
undermine efforts to enable the Palestinians and Israelis to
negotiate a final settlement of the dispute. Jordan's lawyer
argued strenuously that the relationship between an opinion
and the roadmap "needs disentangling," emphasizing that, in
Jordan's view, the roadmap "in legal terms . . . expresses
little more than aspirations." In any event, he said, the
roadmap is not an "exclusive vehicle for settling particular
matters such as the Wall," and concurrent action by the UNGA
or the ICJ is not precluded. The idea that an opinion would
harm the peace process is "mere guesswork." Belgian advocate
(for Palestine) Jean Salmon made the unfortunate comment in
favor of an opinion's value to Palestine, "if you want the
wolf and the lamb to negotiate, then the lamb needs a minimum
amount of protection."

-- Violations of humanitarian and human rights law: All
delegations asserted that the fence violates international
humanitarian law (IHL),in particular the law governing the
rights and responsibilities of an occupying power
(specifically referring to the Fourth Geneva Convention of
1949 and the 1907 Hague Regulations). Several sought to
discredit Israel's long-maintained argument that the Fourth
Geneva Convention does not apply in the occupied territory.
Persistent reference was made to the obligation of an
occupying power, under Article 47 of the Fourth Geneva
Convention, not to permit population transfers into or out of
occupied territory, described on several occasions as a
"grave breach" of the Convention punishable as a war crime.
Several advocates referred approvingly to the February 18
press release of the International Committee of the Red Cross
(ICRC) which concluded that "the West Bank Barrier, in as far
as its route deviates from the 'Green Line' into occupied
territory, is contrary to IHL." One advocate read the entire
release into the record, and several echoed one advocate's
description of the ICRC as "the institutional guardian of the
Geneva Conventions."
Other advocates referred to violations of human rights
instruments in addition to IHL.

-- Military necessity and proportionality: Several advocates
argued that Israel could not rely on the concept of "military
necessity" or self-defense in a general sense to justify the
fence. Egyptian IHL expert, Professor Georges Abi-Saab, made
a sustained argument that military necessity must be
considered only in the context of specific provisions of IHL,
and that in no such provisions could a justification for the
fence be found. Many argued that the protection of
settlements was an "unacceptable" or "impermissible"
justification for self-defense or military necessity.
Similarly, several advocates alluded to the effects of the
fence on Palestinians as being disproportionate to the
self-defense or law-and-order rationales that Israeli might
be expected to employ to justify its barrier.

-- Consequences of an opinion: The basic argument of
delegations was that, if the Court finds the fence to be
illegal, Israel must cease construction, tear it down and
compensate Palestinians for damages. Some advocates argued
that, since an opinion would be rendered to the UNGA
directly, the UNGA or the Security Council would be
responsible for determining the steps Israel and other states
should take. Several also argued that all states would have
an obligation to prosecute or extradite those persons found
on their territory who are allegedly responsible for "grave
breaches" of IHL.


5. (SBU) The absence of Israel, the USG and other governments
which participated in the written phase of the proceeding was
only occasionally mentioned. Israel's absence and its
failure to argue the merits of the fence, in the phrase of
one advocate, "estopped" it from arguing that the Court would
have incomplete facts before it to render an opinion. Few
remarked upon the USG's role in the peace process or absence
from the proceedings. An advocate for Palestine argued that
other members of the Quartet did not oppose an opinion, and
he added that "we even doubt whether" the USG statement can
be characterized as opposing an opinion, considering instead
a "caution" that any opinion not tread too heavily on general
final status issues. A few advocates, in asserting the lack
of "effective" action by the Security Council, referred
obviously to the use or threatened use of the veto by "one
Member".


6. (SBU) The close of the oral phase means that the Court now
retires to deliberations. The Court treated the UNGA request
as urgent, and it is expected that the Court will endeavor to
render its opinion on an urgent basis as well. Whenever the
opinion is rendered, it is likely that the Court will
announce a public reading of the opinion approximately one
week before such an event.


7. (C) Comment: All in all, the proceedings surprised many
observers. They were typical of Court proceedings and thus,
to some, rather boring -- the courtroom's thinning over the
course of the proceedings may reflect such a view. The
repetitiveness of the arguments, suggesting a lack of
coordination among delegations, may have diminished their
impact somewhat. The proceedings were certainly not the
"circus" many expected. The Israeli observers shared this
perception but expressed to embassy legal officer their view
that the proof of seriousness will be in the opinion, and the
focus of their anxieties is now on the rendering of an
opinion. The main concern of several governments -- that the
Court not make pronouncements that would make final status
negotiations more difficult -- may not have been alleviated
by the proceedings, since many of the advocates invited the
Court to make assessments of the legal nature of the Green
Line and the West Bank and East Jerusalem. Few observers are
confident that the Court will decline to accept such
invitations. End comment.
SOBEL