The Electronic Intifada 24 February 2004
Belize, a tiny Central American nation with almost nothing at stake in the Middle East conflict, kicked off the second day of hearings, saying it hoped to make a small contribution to world peace. Belize’s representatives urged the ICJ to declare the wall illegal. They stated that it was causing the “ghettoization” of Palestinians.
Belize’s representative to UNESCO stated: “We have to bring to an end the ignoble terrorism that takes place in Israel and we recognize that Israel is entitled to protect itself. But the building of a wall is a bad and inappropriate response.”
Cuba’s representative Moreno Fernández referred to article 96 of the UN Charter that confers the General Assembly and the Security Council, the unconditional right to request consultative opinions to the Court on any legal question. Moreover, he referred to the Statute of the ICJ which establishes that the Court will emit consultative opinions regarding any legal question at the request by any organ authorized to do so by the UN Charter. In addition, Fernández referred to the UN resolution of 21 October 2003, that established that the construction of the wall is an issue that has clear implications for international law.
Cuba hoped that the ICJ acts in a “decisive and unanimous manner in favour of peace and justice. The Wall of separation continues to accentuate the illegal Israeli occupation, and perpetuates the system of ‘apartheid’ established by Israel in the Occupied Palestinian Territory. Furthermore, with these actions, Israel moves the possibility of reaching a negotiated, just and lasting solution to the Palestinian-Israeli conflict further along into the future.”
Representing Indonesia, Mohammad Jusuf, told the Court that the construction of the wall in occupied territory is “illegal under relevant norms and principles of international law” and “must be ceased and reversed.” He said that Israeli is under a legal obligation to restore land and private properties forcibly seized for the construction of the Wall, to pay full compensation, to annul all measures enacted regarding the wall, to cease restriction on freedom of movement.”
Prince Al-Hussein of Jordan told the Court that it is the Jordanians “who are the ones who could be most affected by Israel’s decision to place the wall where it has, and where it intends to do so in the near future.” Recognizing Israel’s security concerns, the Hashemite prince said that Israel’s argument, “centred as it is on the sporadic suicide bombings of the last three years in particular, must be weighed against almost four decades of Israel dominating and, by virtue of its occupation, degrading, an entire civilian population; often unleashing practices which have been no less horrific, resulting in a huge number of innocent Palestinian deaths and casualties.” Prince Al-Hussein said that his country already hosts a huge number of refugees and displaced persons and that “Jordan is now faced with the threat of a new wave of refugees as a result of the Wall’s construction.”
Jordan dismissed the fears by Israel, the US and the EU about the impact of an ICJ advisory opinion on the legal consequences of the wall on the peace process. Prince Al-Hussein said: “Even in the best of circumstances the impact of an advisory opinion on ongoing negotiations can only be speculative. But in circumstances when negotiations are at best quiescent, speculation descends into mere guesswork. That cannot be a proper basis on which the Court should decline to give an advisory opinion.”
In the afternoon, the Court heard oral statements from Madagascar, Malaysia and Senegal.
Datuk Seri Syed Hamid Albar, Minister for Foreign Affairs of Malaysia, told the panel of judges that the ICJ “as the custodian of international law” is well disposed from a legal viewpoint to determine this legal question”. According to Malaysia’s written statement, there are “no compelling reasons which would justify refusal of the request to provide an advisory opinion.” Albar paraphrased the words of the ICJ in the advisory opinions on the Application for Review, the Western Sahara and the Nuclear Weapons.
Referring to written statements from the European Union, Albar told the judges that Malaysia is “astonished” by the position adopted by some countries, that say that the construction of the wall is contrary to international law and yet, at the same time, request that the Court does not arrive at such a conclusion because the matter is political. “How can it be political when the question put before this Court is about the legal consequences of the construction of the Wall being built by Israel, while these States themselves have taken the view that this construction is contrary to international law? Such an evidently contradictory position may well explain the unfortunate absence of these States at this stage of the procedure.” He also pointed out the contradiction in Israel’s view that “constructing the wall does not harm the road map to peace, but at the same time claiming that raising the question of the legal consequences of the wall before the Court would harm the road map.” He emphasized that the question before the Court does not concern the question of how to resume negotiations between Israel and Palestine, or what is the best way to implement the Road Map. “These would clearly be political rather than legal questions.” Malaysia found it difficult to understand how the rendering of an advisory opinion, to state what a fact or situation is from an international law standpoint, could impair in any way the implementation of the Road Map.
Wednesay morning, the ICJ is scheduled to hear from Sudan, the League of Arab States and the Organization of the Islamic Conference.
The ICJ’s action follows a request from the UN General Assembly on 8 December last year. During an emergency session on Palestine, the Assembly adopted a resolution asking for an urgently rendered opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in an around East Jerusalem.”
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