BEFORE THE INTERNATIONAL COURT OF JUSTICE

Request by the United Nations General Assembly for an Advisory Opinion on what the legal consequences are arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly Resolutions

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ORAL STATEMENT SUBMITTED BY AND DELIVERED ON BEHALF OF
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 23 FEBRUARY 2004

I. INTRODUCTION

1. We are here today as a result of a decision taken on 8 December 2003 by the General Assembly in which it requested on an urgent basis, pursuant to Article 96 of the Charter of the United Nations and in accordance with General Assembly Resolution A/RES/ES-10/14 of 8 December 2003, an Advisory Opinion from the International Court of Justice on the legal consequences arising from the construction of the Separation Wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly Resolutions. The facts were placed before this Court in the two Reports from the Secretary-General of the United Nations, the most recent of which is dated 29 January 2004 and the Report of the Special Rapporteur of the Human Rights Commission. These Reports described the situation that exists on the ground today where the construction of the Separation Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, is continuing.

2. What is required from the Court today is to provide an Advisory Opinion on the legal consequences arising from the construction of the Separation Wall as described in the Reports, nothing less and nothing more. In the written statement submitted to the Court, South Africa indicated that it believes that the Court has jurisdiction to give the Advisory Opinion requested by the General Assembly and that there is no compelling reasons for the Court to decline to give an Advisory Opinion. We did not elaborate our arguments on this matter in our written statement, as we were and still are of the view that the jurisdiction of the Court to hear this matter is beyond question.

3. However, as some states argued in their written statements that the jurisdiction of the Court to issue an Advisory Opinion is indeed questionable, we deemed it expedient to address the Court on this matter. Thus we will primarily focus on the issue of the jurisdiction of the Court, after which we will summarize the major legal arguments raised in our written statement.

4. The South African Government has decided to participate in this hearing due to the seriousness of the matter. The unfolding humanitarian catastrophe in the Occupied Palestinian Territory is of grave concern to the Government of South Africa, as is the worsening security situation in Israel. We have also endorsed on numerous occasions the right of Israel to ensure its security and have repeatedly called on all sides to terminate all violence. Actions, such as the construction of the Separation Wall, that further fuel the cycle of violence and counter-violence, must stop. We are convinced that the solution for the Israeli - Palestinian conflict is a negotiated settlement that would result in a two-state solution. However, the construction of a Separation Wall is a pretext to occupy more land and makes a negotiated settlement even harder to achieve. Indeed, the construction presents a direct threat to the successful implementation of the Road Map. The Separation Wall will make this two-state solution to the Israeli-Palestinian conflict physically impossible to implement and gravely threaten any prospects for a just and peaceful settlement and a lasting peace. The Separation Wall is indeed undermining stability in the Middle East and jeopardizing any attempt to reach a peaceful settlement of this long and bitter conflict.

5. The construction of the Separation Wall is a unique measure in history and as such also has an unprecedented effect in terms of international law and indeed on the future outcome of the Israeli - Palestinian question.

6. Assertions that the Court does not have jurisdiction in the present matter, or
that it should apply its discretion against considering the merits thereof, is tantamount to a request to the Court to paralyze itself and undermines the very role ascribed to it by the Charter. Acceding to these unfounded arguments will result in the Court foregoing this unique opportunity at this crucial moment in its history to fulfill its primary role and obligation to provide advice on international law matters which falls squarely within its jurisdiction. To decline to act in respect of this burning issue may bring the relevance of the Court into question at a time when the United Nations system is under severe pressure. Any unfounded reluctance of the Court to deal with
this matter of grave international concern will inevitably cast a shadow over the
relevance and legitimacy of the Court.

7. South Africa is convinced that the Court not only has jurisdiction to give an Advisory Opinion but has in fact, given its central role as the primary legal body of the United Nations, the legal responsibility to provide the General Assembly with advice on the question posed to the Court.

II. SUMMARY OF POINTS TO BE ARGUED

8. In addressing the matters before the Court, we will seriatim:

i. Focus on the objections raised to the jurisdiction of the Court by others;
ii. indicate why the Court has jurisdiction to issue an Advisory Opinion; and
iii. summarize the main arguments of substance raised in our written submission to the Court on the legal consequences of the construction of the Separation Wall.

III. DUTY OF THE COURT

9. It is the South African Government's conviction that the Court -

i. has jurisdiction to hear the matter; and
ii. has the responsibility as the principal judicial organ of the United Nations to pronounce on the legal consequence of the construction of the Separation Wall.

IV. JURISDICTION OF THE COURT

10. A matter that has been raised by all those that contest the jurisdiction of the Court, is the fact that the Court has a discretion to decide whether or not to give an Advisory Opinion. This fact cannot be contested as Article 65(1) clearly states that the Court may give an Advisory Opinion on any legal question at the request of whatever body that may be authorised by or in accordance with the Charter of the United Nations to make such a request.

11. In this regard, the position of the Court in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (ICJ Reports 1950, p 72) and the Western Sahara Advisory Opinion (ICJ Reports 1975, p 12 at p 21) is noted. The discretion therefore undisputedly exists. The question that begs answering though, is how the Court should exercise this discretion in remaining faithful to the requirements of its judicial character.

12. In answering this question, it is instructive to recall and to reflect on the Court's own views on this matter. The main aspect arising from the Court's earlier consideration of how it should exercise its jurisdiction, is the fact that the Court should in principle not refuse to give an Advisory Opinion. In Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (ICJ Reports 1950, p71) the Court placed on record that an Advisory Opinion is given to the organ that requested it and in principle the Court should not refuse to do so. Later in the Legality of the Threat or Use of Nuclear Weapons case, the Court expressed its view that "the Court is constantly been mindful of its responsibilities as the principal judicial organ of the United Nations. When considering each request, it is mindful that it should not, in principle refuse to give an Advisory Opinion. In accordance with the consistent jurisprudence of the Court, only compelling reasons could lead it to such a refusal".

13. The Court then declared that there has been no refusal in the history of the present Court, based on the discretionary power of the Court, to act upon a request for an Advisory Opinion. In fact, the Court has never refused to give an Advisory Opinion whenever all the other requirements have been met.

14. The question should then be what are the "compelling reasons" that need to exist in order for the Court to decide not to issue an Advisory Opinion?

15. One of the main issues raised by the opponents of the Court's jurisdiction, is the lack of the judicial propriety for the Court if it adheres to the request to give an Advisory Opinion. This position appears to be based by some on inter alia on:
· the lack of consent to the jurisdiction of the Court by Israel;
· the question relates to a substantive dispute between the parties;
· the fact that this is a political and not a legal question;
· the alleged ultra vires nature of the request;
· the assumption that any opinion on this matter will serve no purpose, and will be harmful to achieving a settlement of the conflict;
· the lack of facts before the Court due to the withdrawal by Israel to participate in the hearing;

16. "Propriety" is defined in the Oxford Dictionary as "correctness concerning standards of behaviour or morals; the details or rules of conventionally accepted behaviour; appropriateness; rightness." There can be no doubt that it is correct and appropriate for the Court to give an Advisory Opinion in this case. If the arguments against the Court's jurisdiction are weighed one by one, the only logical conclusion is the unquestionable jurisdiction of the Court to issue an Advisory Opinion in the present case. We will now deal with some of these arguments individually.

i The lack of consent to the jurisdiction of the Court by Israel

17. In accordance with Article 36 (1) of the Statute of the Court, the jurisdiction of
the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in
force. Article 36 (1) therefore refers to three ways in which the jurisdiction of the
Court can be accepted, namely-

(a) submission of a dispute to the Court by the parties themselves;
(b) acceptance of the United Nations Charter; and/or
(c) acceptance of treaties and conventions which provide for the submission of disputes to the Court.

18. By virtue of being a member of the United Nations, a State and in this particular case, Israel, accepts the possibility of the General Assembly requesting an Advisory Opinion from the Court in accordance with the relevant provisions of the Charter and the Statute on a legal question.

19. Furthermore Article 65, paragraph 1 of the Statute of the Court provides that:

"The Court may give an Advisory Opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request"

20. Although the United Nations Charter does not specify the matters subject to
the Jurisdiction of the Court, it suffices to say that the matter should be a legal question. Article 96, paragraph 1, of the United Nations Charter stipulates that:

"The General Assembly or the Security Council may request the International Court of Justice to give an Advisory Opinion on any legal question".

21. These two provisions establish the competence of the General Assembly to request an Advisory Opinion from the Court and also the competence of the Court to give the requested opinion on any legal question.

22. The Advisory Opinion has been requested by the General Assembly in line with Article 96, paragraph 1 of the United Nations Charter. This provision does not require the General Assembly to obtain the consent of any party before it requests an Advisory Opinion from the Court.

23. The lack of consent to that process from any particular State is not relevant to the jurisdiction of the Court to provide the requested opinion. As the Court said in its Advisory Opinion on the Applicability of Article VI, Section 22, of the Convention on the Privileged and Immunities of the United Nations:

"The jurisdiction of the Court…to give Advisory Opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them" (ICJ Reports 1989 (at pp188-189).

24. Similar views were expressed in the earlier case of the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania ICJ Reports 1950 at p71). A clear distinction has always been maintained between contentious cases on the one hand and Advisory Opinions on the other. In the legality of the Threat or Use of Nuclear Weapons Case this Court has gone even further to say that:

"It is not for the Court itself to purport to decide whether or not an Advisory Opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs."(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p226, at 235.)

25. Furthermore this Court found that:

"It follows that no State can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organisation and in principle, should not be refused". (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, ICJ Reports, 1950).

ii The question before the Court relates to a substantive dispute pending between the parties.

26. The Court has acknowledged that underlying a request for an Advisory
Opinion it is probable that there will be a controversy which has led the United Nations to make the request. In the Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970), the Court logically remarked that:

"differences of view amongst States on legal issues have existed in practically every advisory proceeding, if all were agreed, the need to resort to the Court for advice would not arise." (ICJ Reports 1971, p16, at p25).

27. As the Court stated in its Advisory Opinion given in 1973 concerning the case on Application for Review of Judgement No.158 of the United Nations Administrative Tribunal, (ICJ Reports 1973, p171):

"The existence, in the background, of a dispute between the parties which may be affected as a consequence of the Court's opinion, does not change the advisory nature of the Court's task, which is to answer the questions put to it…." (ICJ Reports 1973, p171).

28. In the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Case, (ICJ Reports 1950) the Court was of the view that a State could not prevent it from giving an Advisory Opinion " even where the request for an opinion relates to a legal question actually pending between States" ( p71).

29. Relying on the aforementioned case, the Court, in the Western Sahara case reaffirmed this principle, (ICJ Reports 1975) and rejected the contention of Spain that it should not give an Advisory Opinion because it would be an opinion on what in effect was the subject of a dispute between itself and other States, and Spain did not consent to the proceedings. The Court further affirmed that its competence to give an opinion did not depend on the consent of the interested States, even when the case concerned a legal question actually pending between them. An instance where the Court would refuse to render an opinion is when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. In such a situation the giving of an Advisory Opinion would be incompatible with the judicial character of the Court. However, as has already been shown to the Court in the previous argument, such a situation does not arise in the present case.

30. The present legal question before the Court is similar to the one dealt with in the Western Sahara case in that, it "is located in a broader frame of reference than the settlement of a particular dispute and embrace other elements. These elements are not confined to the past but are also directed to the present and the future".

31. It is therefore incumbent on the Court to provide its opinion on the legal question before it, for the elements that are embraced by this legal question no doubt also embrace elements directed to the present and future.

iii The question is a political and not a legal question

32. It has been submitted that the question before the Court is not a legal question, because it is not possible to ascertain with reasonable certainty the meaning of the question, there is an underlying assumption of illegality and it does not specify for whom the legal consequences will arise.

32. It has been contended by some that the question before the Court has two possible meanings: firstly that it requires the Court to find that the construction of the Separation Wall is unlawful and then to proceed to the consequences, and alternatively, that the Court must assume illegality before proceeding. In this regard an attempt is made to distinguish the present matter from the Advisory Opinion given on the legal consequences that arose from the continued South African presence in Namibia, where the illegality of such presence had already been established by Security Council Resolution 276 (1970).

33. It is submitted that this is a highly artificial interpretation of the question posed to the Court. In the first place it disregards the resolution by the referring organ, the General Assembly, that the construction of the Separation Wall is "in contradiction to the relevant provisions of international law" (Resolution ES-10/13). Secondly, it assumes that the Court can only work during the second stage of a two stage process, requiring first a determination on the illegality of actions by Member States from another organ, the Security Council. This approach denies the Court as the principal legal organ of the United Nations, the opportunity to interpret legal questions put before it.

34. Furthermore, the point has been raised that, unlike the question put before the Court in the Namibia case which enquired as to the legal consequences for States, no such specification has been made in the present case. This is not unusual.

35. Both Article 96(1) of the Charter and Article 65(1) of the Statute of the Court define legal questions to be put to the Court unconditionally and in the widest possible terms. Prescriptions on the term "any legal question" referred to the Court are nowhere to be found and will serve only to undermine the competency bestowed on the Court by the Charter and its own Statute. This approach lacks any legal basis and will only serve to make the Court a hostage of terminology, denying it the opportunity to play its proper role and as the Court itself has determined in the Corfu Channel case its role is "to ensure respect for of international law." (Corfu Channel (Merits), ICJ Reports, 1949, p 35).

36. As to the interpretation of the question, it is submitted that the meaning is clear within the context: the Court is requested to pronounce on the legal consequences, in terms of international law, that will arise from a specific factual situation, namely the construction of the Separation Wall by Israel. This determination must be done in terms of applicable rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions. It should be noted that the factual situation namely the construction of the Separation Wall referred to in the question, is without precedent. It necessarily raises several legal questions, and uncertainties in respect of which the General Assembly could need the opinion of the Court.

37. It has also been argued that due to the alleged "political" nature of the matter before the Court, it should be entrusted to resolution by political process rather through an Advisory Opinion by the Court.. This approach implies an inability of the Court to resolve matters of a political nature, in other words, virtually all issues that will result in inter-state disputes. In the past the Court vigorously denied that this argument has any validity: In the legality of the Threat or Use of Nuclear Weapons Case, it found that:

"The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a 'legal question" and to deprive the Court of a competence expressly conferred on it by its Statute" (Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p.234).

iv The alleged ultra vires nature of the request

38. It has been contended that the request for the Advisory Opinion is ultra vires the 10th Emergency Special Session of the General Assembly from which Resolution ES-10/14 emerged. This contention is based on inter alia the fact that the Uniting for Peace resolution, in terms of which the 10th Special Emergency Session had been convened, foresees that only issues of immediate concern can be dealt with, while the Session has been going on since 1997 and was convened to deal with another matter, namely Israeli settlements and that the Security Council is exclusively mandated to deal with areas accorded to it by Chapter VI, dealing with the pacific settlement of disputes, and the present matter falls within this purview to the exclusion of the General Assembly, which only has secondary powers in this regard.

39. Furthermore, it was contended that even if the General Assembly convened in a regular session, it would not have the competence to adopt the request for an Advisory Opinion, as the special powers of the Security Council relating to the maintenance of international peace and security excluded the General Assembly, with general powers in this regard, from acting in this field.

40. It is respectfully submitted that these arguments, aiming to restrict the competence of the General Assembly to request Advisory Opinions to the point where it will be negligible, are incompatible with the broad competence ascribed by Article 96(1) of the Charter, to the Security Council and the General Assembly on the basis of equality. The competence of the General Assembly to request Advisory Opinions matches the scope of its competencies provided for in the Charter.

41. Article 65 of the Statute of the Court confirms that the Charter is the basis of the authority to request Advisory Opinions. Neither the Charter nor the Rules of Procedure of the General Assembly prescribes specific procedures for a request for an Advisory Opinion. Objections to the practices and procedures adopted by Emergency Special Sessions are derived from internal memoranda and letters from Permanent Representatives, which, at best, illustrate differences of opinion and are not equal to binding procedures.

42. It is also legally untenable to argue that the General Assembly's competence to request an Advisory Opinion is excluded by the Security Council's competencies in terms of Chapter VI of the Charter, and, by implication, that the Court's competence to pronounce on such request is also excluded. Such an interpretation apparently rests upon Article 12 of the Charter which stipulates that while the Security Council is exercising the functions assigned to it in the Charter, in respect of any dispute or situation, the General Assembly shall not make any recommendation with regard to that dispute or situation unless upon request of the Security Council.

43. This contention implies that as far as the referral to the Court of legal questions relating in some or the other way to peace and security is concerned, the Security Council has the exclusive competence. The contention is fatally flawed.

44. There is clear authority that Article 12 does not trump the authority of the General Assembly to request Advisory Opinions on matters in respect of which the Security Council is exercising its functions: "The General Assembly and the Security Council may request Advisory Opinions directly on the basis of Article 96(1). This competence extends the scope of the activities of either organ according to the general provisions of the Charter concerning the competence of the one or the other". (Simma, B. (ed), The Charter of the United Nations: A Commentary, 1995, p. 1010). Any suggestion that there exists within the Charter a separation of powers that prevents the General Assembly or the Court to deal with an issue relating to the maintenance of international peace and security, is untenable. There is also authority that the Security Council has primary, not exclusive, responsibility in this regard which does not exclude separate but complementary competence by the General Assembly and the Court (Gray, Christine, The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua, European Journal of International Law, 2003, p. 871). The Court has also reached the name conclusion in the case United States Diplomatic and Consular Staff in Tehran case (ICJ Reports 1980 pp21 -22) where it found that:

"Whereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendations with regard to a dispute or situation while the Security Council is exercising its functions in respect of that dispute, no such restriction is placed on the functioning of the Court by any provision either of the Charter or the Statute of the Court".

45. As regards Article 12, it has been interpreted very narrowly by the General Assembly, a situation which has been accepted by the Member States and the Security Council. Thus:

"The General Assembly does not lose its competence to discuss the dispute or situation while the Security Council is dealing with it, nor even to assess it. Article 12(1) in United Nations practice bars the General Assembly only from making recommendations concerning the specific dispute or situation. This does not restrict its recommendatory power ….with regard to aspects of the dispute or situation not directly connected with the maintenance of or threat to the peace. For example, the General Assembly, having referred the Palestine question to the Security Council, certainly did not stop dealing with the problem and making recommendations concerning it. It in fact continued to deal with the political, economic and social aspects, while the Security Council dealt with the military and security aspects of the issue" (Simma, op cit, p.258).

46. In view of the longstanding practice with regard to the application of Article 12(1), it is difficult to imagine that its application can prevent the General Assembly seeking an Advisory Opinion within the present circumstances.

v Assumption that an Advisory Opinion will serve no purpose and will be harmful to achieving a negotiated settlement of the conflict

47. As regards the argument that the Israeli-Palestinian conflict is being addressed by a political process, and that an Advisory Opinion on the question put to the Court by the General Assembly will be devoid of legal purpose, will not assist the General Assembly in its work and will hinder, rather than help, the achievement of the Road Map's objectives, it should be noted that the Court has, on several occasions, rejected objections of this nature: both in the Nicaragua case and in the case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (ICJ Reports 1998 275, para 61). It is submitted that this principle is not affected by the fact that in the present case the Security Council forms part of the Quartet. As the Court pronounced in the case of Military and Paramilitary Activities in and against Nicaragua (Jurisdiction) (ICJ Reports 1984 at p. 436 para 98):

"(The Court) has been asked to pass judgment on certain legal aspects of a
situation which has also been considered by the Security Council, a procedure
which is entirely consonant with its position as the principal judicial organ of
the United Nations".

48. The Court has been consistent in its approach that neither the motive nor context of a question matters with regard to the issue of jurisdiction. In this regard it stated in the Use of Nuclear Weapons case that it:

"also finds that the political nature of the motives which may be said to
have inspired the request and the political implications that the opinion might
have are of no relevance in the establishment of its jurisdiction to give such an
opinion" (Use of Nuclear Weapons, ICJ Reports 1996, para. 17).

49. It should be pointed out that any statement to the effect that an opinion by the Court on the question before it will hinder, rather than help, the Road Map process, is mere conjecture. It is submitted that the construction of the Separation Wall will prejudice future negotiations on a territory and boundaries of a Palestinian state and so undermine the very aims of the Road Map. The opposite could also be argued? However, quite the opposite is true: Legal clarity on the legal consequences of the actions of one of the major role players in the Palestinian question will rather enhance the longer-term prospects for peace.

50. The Court should not shy away from its obligation where an opportunity presents itself, to provide advice based on solid legal principles and in the process also play a role in enhancing efforts of preventative diplomacy.

51. The Court's role in an Advisory Opinion will be complementary in nature and will not be binding on either of the Parties, but can serve to bring the current situation from the brink of disaster, back on track.

52. Furthermore it must also be asked how can an argument be sustained before this Court that in exercising its duty as primary judicial organ of the United Nations on a matter of grave international concern, the Court will harm rather than help an international peace process?

vi The lack of facts before the Court

53. It has been submitted that the Court is precluded from deciding on the matter due to a lack of facts before it. However, this alleged ground of inadmissibility has been rejected by the Court on a number of occasions. In the Case concerning Military and Para-military Activities in and Against Nicaragua (ICJ Reports 1984 437 at para 101), the Court follows a well-established legal principle by indicating that: "Ultimately, however, it is the litigant seeking to establish a fact who bears the burden of proving it", an approach confirmed in the Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections Case (ICJ Reports 1998 275 at para.101).

54. In the Namibian case the Government of South Africa argued that: Since the Court may only give an Advisory Opinion on a legal question, it may consequently be doubted whether it is entitled to furnish an Opinion if, in order to do so, it also has to make findings as to primary facts. (Statement submitted by the Government of the Republic of South Africa, vol 1 p 143 par 45). The Court rejected this argument completely. (ICJ Reports, 1971 p 27 par 40).

55. This outcome stands to reason: as a matter of policy a Member State should not be allowed to undermine the judicial function of the Court by refusing to place facts it considers essential before the Court, and then benefit from this situation by seeking to use it as a manner of denying the Court jurisdiction.

Conclusion:

56. In light of the arguments raised above, it is submitted that the Court does have jurisdiction to provide an Advisory Opinion on this case. The Court must remain faithful to the requirements of its judicial character and discharge its functions as the principal legal organ of the United Nations.

V. SUMMARY OF MERITS

57. Detailed arguments on the merits were placed before the Court in our written statement and it suffices to summarize the main substantive legal arguments raised in respect of the legal consequences of the construction of the Separation Wall.

Applicability of International Humanitarian Law

58. There is no doubt that the 1967 War was an international armed conflict
within the meaning of the Geneva Conventions. Israel's obligations as an Occupying Power in the Palestinian Territory are governed by rules and principles of international law, international humanitarian law and international human rights law. The general framework of international law governing occupation as contained in The Hague Regulations of 1907 and the Fourth Geneva Convention, is applicable to the Occupied Palestinian Territory and to Israel as the Occupying Power. Israel is a party to the four Geneva Conventions and it is widely accepted that the Hague Regulations of 1907 are declaratory of general international law, as confirmed by the Court in its Nuclear Weapons Advisory Opinion in 1996. Furthermore, the UN General Assembly
reaffirmed the applicability of the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied
Palestinian Territory, including Jerusalem, and the other occupied Arab territories, in
its Resolution A/RES/56/60 of 14 February 2002.

De facto Annexation

59. The de facto consequence of the construction of the Separation Wall, which deviates from the Green Line, which represents the actual boundary between Israel and Palestine, is that that area will be annexed and incorporated within the territory of Israel. This de facto annexation is an attempt to create facts on the ground that will be difficult to change. Such a construction not only violates various Security Council Resolutions, but is also in direct breach of the rule of customary international law against the acquisition of territory by force or annexation. In international law,
annexation of this kind is tantamount to conquest, which was banned by the prohibition of the use of force contained in Article 2 (4) of the UN Charter. Furthermore, the Construction of the Separation Wall violates one of the fundamental rules of International Humanitarian Law as laid out in Article 47 of the Fourth Geneva Convention, under which the rights of persons living in occupied territories are fully protected by international law. The Occupying Power, in this case Israel, may not alter their legal situation by either a unilateral act or annexation of the territory, for they remain protected persons.

Justification of Self-defence and military necessity

60. The principle of self-defence cannot be employed as a justification for the construction of the Separation Wall. It is established international law that the right to self-defence is a temporary right. In the present case however, the permanent structure of the Separation Wall suggests the opposite. The principles of necessity and proportionality, which form part of the doctrine of self-defence, enshrined in Article 51 of the UN Charter, have been violated by Israel through the construction and the severe consequences of the Separation Wall. These consequences have been the unwarranted restrictions of movement, isolation of civilians from their farmlands, destruction of crops, impairment of access to essential social services as described in the Report of the Secretary-General prepared pursuant to General Assembly Resolution ES-10/13 (A/ES-10/248 dated 3 December 2003) which is before the Court. These consequences are totally disproportionate and unnecessary bearing in mind that the focus of Israeli defence is occasional and irregular attacks by lone operators.

61. A question of fact that begs the Court's consideration is why, if the Separation Wall as a measure of self-defence is intended to protect Israeli citizens and territory, it is not being constructed on undisputed Israeli territory? Is the logical explanation for the chosen route of the Separation Wall cutting across occupied territory not an attempt of de facto annexation?

62. The justification that has consistently been advanced by the Israeli Government for the construction of the Separation Wall, is that it is necessary to ensure the security of Israel. They maintain that the destruction and seizure of Palestinian property and the violation of human rights of the Palestinian population are demanded by the necessities of war, as permitted by Article 23 of the Hague Regulations of 1907. In this regard the Court should take note that the Israeli government in this instance is relying for protection on the very same Hague Regulations that they have always maintained do not bind them. Nonetheless, it is submitted that the concept of "military necessity" does not release a state from the obligations of complying with international humanitarian law. The Geneva Conventions of 1949 and their Additional Protocols, together with the Hague Regulations, have already struck the balance between the demands made on the law of conduct of war and the requirements of humanity.

63. The right of Israel to security has never been denied, but this right must be exercised within the limits of law.

The right to self-determination

64. The Separation Wall violates two of the most fundamental principles of contemporary international law and of the right to self-determination.

65. The right to self- determination and the concept of territory are intrinsically linked. The right of the Palestinian people to self-determination is unquestionable, has been reaffirmed by the United Nations on numerous occasions and forms the underlying principle of the two-state solution.

66. As the Special Rapporteur of the Commission on Human Rights has correctly pointed out in his report, " A people can only exercise there right to self-determination within a territory. The amputation of Palestinian territory by the construction of the Separation Wall seriously interferes with the right of self-determination of the Palestinian people as it substantially reduces the size of the self-determination unit."

Human Rights violations

67. Further consequences of the Separation Wall have been grave infringements of recognised human rights principles as enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 16 December 1966, which Covenants have both been ratified by Israel in 1991. The grave human rights situation resulting from the construction of the Separation Wall is well documented in both the Report of the Secretary -General prepared pursuant to General Assembly Resolution ES-10/13
dated 24 November 2003 as well as the Report of the Special Rapporteur of the Commission on Human Rights, on the situation of human rights in the Palestinian territory occupied by Israel since 1967, which documents are in the Court's possession.

68. Article 2 of the International Covenant on Civil and Political Rights provides clearly that " each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised by the Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

69. These rights are universal and inalienable rights of all members of the human family, and it is incorrect in law and even a moral to suggest that the residents of the Occupied Palestinian Territory are not entitled to these rights.

…………………………………………………
FOR AND ON BEHALF OF THE GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA

DATE: ……………………………………….

Issued by Ronnie Mamoepa at 082-990-4853
Department of Foreign Affairs
P/Bag X152
Pretoria
0001
23 February 2004.