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Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety

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aliasesWritten Statement of the Government of Israel on Jurisdiction and Propriety, Israel Written Statement Wall Advisory Opinion 2004

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Summary

The Government of Israel’s written statement to the International Court of Justice in the advisory proceedings on the wall, filed with a cover letter of 29 January 2004 from Alan Baker, Deputy Director General and Legal Adviser, and dated 30 January 2004 on its title page. Israel addresses jurisdiction and propriety only: it submits that the Court has no jurisdiction to entertain the request of the Tenth Emergency Special Session of the General Assembly in resolution ES-10/14, and that even if it did, it should exercise its discretion under Article 65(1) of the Statute to decline to answer. Part 1 (PDF p.1-61) covers the cover letter, the Opening Statement, Chapter 1 (Introduction), Chapter 2 (fairness and natural justice: the case title, the six-week time-limits, the participation of “Palestine”, the challenge to Judge Elaraby under Article 17(2), and the Secretary-General’s Report and the Secretariat’s Dossier), and Chapter 3 through paragraph 3.78 (essential context: the settlement process from Madrid through the Oslo agreements, the Mitchell Report and the Quartet Roadmap, borders, Jerusalem and settlements, and a detailed account of the Palestinian terrorist threat as Israel presents it) (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.1-61). Part 2 (PDF p.62-114) finishes Chapter 3 with the Aqaba statements of Prime Ministers Abbas and Sharon of 4 June 2003, then opens Part Two with Chapter 4 (the request is ultra vires the Tenth Emergency Special Session of the General Assembly and the General Assembly, because the condition precedent in the Uniting for Peace resolution — a Council failure to exercise its primary responsibility because of lack of unanimity — was not met after the unanimous adoption of resolution 1515) and Chapter 5 (the question is not a legal question, because it is uncertain whether it asks the Court to find illegality or to assume it, and for whom legal consequences are sought), and opens Part Three with Chapter 6 (the Article 65(1) discretion and the judicial-character limits drawn from Status of Eastern Carelia, Western Sahara Advisory Opinion and Namibia Advisory Opinion) and Chapter 7 through paragraph 7.14 (the request concerns a contentious matter to which Israel has not consented) (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.62-114). Part 3 (PDF p.115-192) completes Chapter 7 (the Israel-PLO agreements settle disputes by negotiation, conciliation or agreed arbitration, never by the Court, and “Palestine” is not a State with standing), Chapter 8 (the Court would have to speculate about essential facts and assume arguments of law), Chapter 9 (other compelling reasons: the clean-hands principle and the Roadmap) and Chapter 10 (Summary and Conclusions), and reproduces Annexes 1-17 of 24 — the Margalit letters of 11 and 31 December 2003, the Mekel letter of 26 January 2004, resolutions 3237 (XXIX), 43/160 A, 43/177 and 52/250, Arafat’s letter of 9 September 1993, the Quartet and Security Council presidential statements of 2002-2003, resolution 62 (1948), and the opening of the Israel-Jordan General Armistice Agreement (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.115-192). Part 4 (PDF p.193-231) completes Annex 17 (Articles I-XII and the definition of defensive forces), and reproduces Annex 18 (the USA Today article of 14 March 2002 on the Al-Aqsa Martyrs Brigades and Arafat), Annex 19 (the Prime Minister’s Office account of Sharon’s 18 January 2004 meeting ahead of the Court’s deliberations), Annexes 20-21 (the Aqaba statements of Abbas and Sharon of 4 June 2003, already quoted in Chapter 3), Annex 22 (resolution 377 (V), Uniting for Peace, in full) and Annex 23 in part (S/PV.4836, the Security Council meeting of 5 October 2003 after the Haifa restaurant attack and Israel’s strike at Ein Saheb in Syria, through the opening of the League of Arab States statement) (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.193-231).

What the file is

The ICJ Registry file for Case No. 131, downloaded from the Court’s website: a 246-page scanned PDF, with a text copy carrying PDF page markers. The cover letter is dated 29 January 2004 and bears a Registry filing stamp of that date (6 Shvat 5764); the statement’s title page is dated 30 January 2004; both dates are as printed. The text copy is blank at PDF p.4, p.18 and p.47, which contain text in the original and were read there (the Opening Statement at p.4, paragraphs 1.14-1.16 at p.18, and the end of the United States statement and the United Kingdom and Singapore statements at p.47); PDF p.7 and p.13 are blank in the original as well. The text copy carries frequent OCR slips (for example 10th rendered with a numeral 1 for the letter l, and all rendered al1), which are not corrected in quotations. PDF p.67, p.93 and p.101 are blank in the original as well as in the text copy (checked in the original in part 2); PDF p.66 and p.100 are Part title pages. The Opening Statement (paragraphs 0.1-0.7, printed p.(i)-(ii)) has no heading in the table of contents, which begins with Chapter 1; its first page is PDF p.4. PDF p.123, p.129, p.133, p.146, p.158, p.166 and p.182 are likewise blank in the original as well as in the text copy (checked in the original in part 3). PDF p.200 and p.205 are Annex title pages in the original (“Annex 18” and “Annex 19”) where the text copy is blank, and PDF p.229 (printed p.12 of S/PV.4836) carries text in the original where the text copy is blank; those pages were read in the original in part 4. The Annex 22 reproduction is of scanned Official Records pages whose text copy is heavily garbled, and the Annex 23 verbatim record is printed in two columns that the text copy interleaves; both were reassembled in printed order in part 4. The annexes volume opens at PDF p.136 with its own title page dated 30 January 2004 and a repeated List of Annexes (PDF p.137-138); the annexes are scanned reproductions whose text copy is heavily garbled where the original is a fax or a web print (notably Annexes 1, 2 and 12), and those annexes were read in the original in part 3.

Section by section

  • Cover letter (PDF p.1-2): Alan Baker transmits the statement under the Court’s Order of 19 December 2003 and Article 66, paragraph 2, of the Statute. The statement sets out objections to jurisdiction and propriety and, as an element relevant to discretion under Article 65(1), details the ongoing terrorist threat. As the letter was being written, news broke of a bus bombing in Jerusalem; in the first minutes ten people were reported killed and 45 injured. The requesting resolution is absolutely silent on such attacks; Baker asks that the letter be brought expressly to the attention of the Members of the Court and treated as an integral part of Israel’s statement.

  • Opening Statement, paragraphs 0.1-0.7 (PDF p.4-6, printed p.(i)-(ii)): Israel faces 40 to 50 significant security alerts every week; in March 2002, 135 people were killed and over 721 injured in 37 incidents; over the past 12 months attacks have killed 218 people and injured around 850; in the past 40 months attacks have left 916 people dead and over 5,000 injured. The requesting resolution’s twenty preceding paragraphs say nothing about Palestinian terrorism, and the Secretariat’s dossier of 88 documents omits Security Council resolution 1373 (2001). The PLO, through Fatah, the Al-Aqsa Martyrs’ Brigades and its wider authority in the West Bank and Gaza, is said to be behind many of the attacks, most recently the 14 January 2004 attack in which four Israelis were killed and in which the Brigades were involved. The statement addresses jurisdiction and propriety only, not the legality of the fence; the request is ultra vires because the Security Council did act, adopting resolution 1515 (2003) endorsing the Roadmap 19 days before the request; and the Court should decline to answer, because “Palestine” does not come with clean hands, the process is tainted and an abuse of the advisory procedure, the question is unbalanced, and any response would cut across the Roadmap.

  • Table of contents (PDF p.8-11): Part One, Preliminary Matters (Chapters 1-3); Part Two, Objections to Jurisdiction (Chapters 4-5); Part Three, Propriety and the Exercise of Discretion (Chapters 6-9); Chapter 10, Summary and Conclusions; List of Annexes.

  • Chapter 1, Introduction, paragraphs 1.1-1.18 (PDF p.14-19): The question in resolution ES-10/14 is quoted in full. Three common threads run through the objections: the request is at odds with the Security Council-endorsed Roadmap, whose first step is an end to violence and terrorism and which reserves borders, settlements and Jerusalem to Phase III permanent status negotiations; the request is ultra vires the Emergency Special Session, which is competent only where the Security Council has failed to act; and the request ignores the factual context of Palestinian terrorism, for which, by attribution, “Palestine” is said to bear responsibility. The fence is presented as solely a temporary, non-violent, defensive measure, which Israel expects to move to reflect any agreement when the threat has ceased, as it has moved fences before on its borders with Egypt, Jordan and Lebanon. Paragraphs 1.13-1.16 describe the threat’s reach into Israeli society (the Dolphinarium, Park Hotel, Matza restaurant and Tel Aviv-Tiberias bus attacks) and record that in April 2002 Israel approved the fence as a measure of last resort. Paragraph 1.17 notes that the High Court of Justice has been seised of petitions on the fence. Paragraph 1.18 asks where the Court would stop if it answered, citing by comparison India’s fence along the Line of Control in Kashmir, Russia in Georgia and Chechnya, and China in Tibet.

  • Chapter 2, Issues of Fairness and Natural Justice, paragraphs 2.1-2.28 (PDF p.20-29): Israel’s letters of 11 December 2003 (Annex 1), 31 December 2003 (Annex 2) and 26 January 2004 (Annex 7) are the documentary spine. (A) Title: the term wall is a calculated, pejorative choice; along the 180 kilometre route so far constructed, 8.8 kilometres, or less than 5 percent, is concrete barrier; the Secretary-General’s report used the neutral term the Barrier; Israel will use fence. The term Occupied Palestinian Territory is said to prejudge the Green Line as a border, contrary to resolution 242, the Declaration of Principles and the Roadmap. (B) Time-limits: the six weeks fixed for written statements, with a hearing on 23 February 2004, no written reply phase and open oral participation, are said to be exceptionally short by comparison with the Special Rapporteur and Namibia advisory proceedings and to raise serious fairness concerns. (C) Participation of “Palestine”: the invitation has no basis in Articles 35(1) and 66 of the Statute; resolutions 3237 (XXIX), 43/160 A, 43/177 and 52/250 confer observer rights in the General Assembly only and no rights before the Court. (D) Article 17(2): Israel challenged Judge Elaraby’s participation, confidentially under Rule 34(2), on the basis of his leading role in the Emergency Special Session and his prior advocacy, applying the appearance-of-bias test in the ICTY Appeals Chamber’s Furundzija judgment. (E) The Secretary-General’s Report’s Annex I is said to be materially inaccurate as a summary of Israel’s legal position, its treatment of resolution 1373 one-sided, and its account of the Roadmap misleading; the Secretariat’s Dossier is said to omit resolutions 1269 and 1373 while including resolution 194 and the Rome Statute of the ICC, and to include the Special Rapporteur’s reports without Israel’s circulated responses.

  • Chapter 3, Essential Contextual Material, paragraphs 3.1-3.78 (PDF p.30-61; chapter continues in part 2): Section A states that a limited factual presentation is necessary to assess vires, the contentious character of the matter, and discretion. Section B(i)-(ii) traces resolutions 242, 338 and 1397 and the Madrid Process of October 1991, whose Israel-Jordan track produced the Israel-Jordan Peace Treaty of 26 October 1994, and the secret Norway talks leading to the Oslo Accords. Section B(iii) quotes Chairman Arafat’s letter of 9 September 1993 recognising Israel, accepting resolutions 242 and 338, renouncing terrorism and assuming responsibility over all PLO elements; Israel says these commitments have been honoured only in the breach. Section B(iv)-(v) covers the Declaration of Principles of 13 September 1993, which reserved Jerusalem, refugees, settlements, security arrangements and borders to permanent status negotiations, and the 1994-1999 agreements (Gaza-Jericho, the two transfer agreements, the Interim Agreement of 28 September 1995, and the Hebron Protocol), the Note for the Record, the Wye River Memorandum’s zero tolerance undertaking, and the Sharm El-Sheikh Memorandum; a Palestinian commitment to forestall violence is presented as a sine qua non throughout, and its failure as a key reason for breakdown after Camp David in July 2000 and the violence from the end of September 2000. Section B(vi) covers the Mitchell Committee (established 17 October 2000, reported 30 April 2001), whose first recommendation was that the violence must end and that the Palestinian Authority make a 100 percent effort to prevent terrorist operations; Israel says there has been no such movement and that the fence is its response. Section B(vii) covers Security Council resolutions 1397, 1402, 1403, 1435 and the Presidential Statements of 10 April and 18 July 2002, the Quartet statements of 16 July and 20 December 2002 and 20 February, 22 June and 26 September 2003, the Roadmap’s presentation on 30 April 2003 and transmission as S/2003/529, its three phases with an unconditional cessation of violence as the gateway, and resolution 1515 (2003), adopted unanimously on 19 November 2003 and quoted in full. Nineteen days later ES-10/14 was adopted by 90 votes in favour, 8 against and 74 abstentions, without the support of any Quartet member other than the United Nations; the statements of Uganda, the United States, the United Kingdom and Singapore are quoted in full, each opposing or abstaining on the referral for reasons including politicising the Court, forum shopping, the absence of consent, and the Assembly having already declared the wall illegal in resolution ES-10/13. Section C argues that the Green Line is the 1949 Armistice Demarcation Line, which by Articles II and VI(9) of the Israel-Jordan Armistice Agreement is without prejudice to future territorial settlement or boundary lines, was never authoritatively demarcated, and was adjusted by joint commanders; settlements are reserved to permanent status negotiations, and terrorism against settlement residents is illegal wherever it occurs. Section D(i) names four principal organisations — the Al-Aqsa Martyrs’ Brigades, the Popular Front for the Liberation of Palestine, Hamas and Palestine Islamic Jihad — said to be responsible for about 20,000 incidents since October 2000, with attack lists for each, including the Brigades’ link to Fatah and to the Palestinian Authority’s 80,000-strong security forces. Section D(ii) gives the methods and scale: suicide bombings are a small minority of attacks but account for the majority of deaths; about 70% of suicide attacks have taken place west of the Green Line, accounting for around 80% of Israeli deaths from such attacks in that area; March 2002 (37 fatal attacks, 135 killed, 721 injured) led to Operation Defensive Shield and to the fence decision; in the 12 months to filing, 218 were killed and around 850 injured, with attempted attacks remaining at around 50 a week; five named-casualty accounts follow (Anya Kazachkov, Marianne Myriam Lehmann Zaoui, Revital, Matan and Noam Ohayon, Noam Leibowitz, and the Almog family). Section D(iii)-(iv) begins at PDF p.60-61: three foiled mega-terror incidents (a planned 1,000 kilogram car bomb at the Azrieli twin skyscrapers in late April 2002, the Pi Glilot depot bomb of 23 May 2002, and an intercepted bomber en route to the Teddy Kollek stadium in January 2003), and the opening of the responsibility argument — cessation of terrorism is the threshold issue, committed to by Arafat in September 1993 and placed at the top of the agenda by the Mitchell Report, the Tenet Plan, the Roadmap, the Quartet statements and the Security Council.

  • Chapter 3, Section D(iv) concluded, paragraphs 3.79-3.86 (PDF p.62-65): Israel regrets innocent Palestinian suffering and seeks to alleviate fabric-of-life constraints, but citizens’ lives weigh heavily; Prime Minister Sharon’s statement of 18 January 2004 (Annex 19) is quoted for the fence’s excellence at preventing terror, its unsatisfactory damage to Palestinians’ quality of life, his personal monitoring of complaints, and possible route changes without harming security. Terrorist actions are said to violate the laws and customs of war (some amounting to grave breaches), the principle of distinction, the rules on perfidy and booby traps, and to amount to crimes against humanity. The Palestinian leadership is said to know its responsibilities while taking little effective action. Prime Minister Abbas’s Aqaba Summit speech of 4 June 2003 (Annex 20) is quoted at length — acceptance of the Roadmap without reservations, renunciation of terror, an end to the militarization of the intifada, a single political authority and a complete end to violence and terrorism — followed by the submission that killing began again the next day, that 127 Israelis have since been killed, and that the Al-Aqsa Martyrs’ Brigades claimed responsibility for many of the attacks. Prime Minister Sharon’s Aqaba response (Annex 21) is also quoted at length — security as his paramount responsibility, support for the two-State vision, territorial contiguity, no unilateral actions prejudging negotiations, and immediate removal of unauthorised outposts. Paragraph 3.86 frames these as the prism for the objections and urges the Court to decline under Article 65(1).

  • Chapter 4, The Request is Ultra Vires the Competence of the 10th Emergency Special Session and/or the General Assembly, paragraphs 4.1-4.58 (PDF p.68-92): Section A contends there was no Security Council failure, resolution 1515 having been adopted unanimously 19 days before ES-10/14, and that the Assembly in regular session would have been equally precluded because its peace-and-security competence is subsidiary and it must exercise restraint when the Council acts. Section B(i) traces the Session’s convening: two US vetoes of settlement drafts on 7 and 21 March 1997 (S/1997/199, S/1997/241), Qatar’s letter of 31 March 1997 for the Arab League States on the Jabal Abu Ghneim settlement, the opening statements of President Razali Ismail and Mr Al-Kidwa on 24 April 1997, resolution ES-10/2’s temporary adjournment, and 11 reconvenings since. Section B(ii) quotes the Uniting for Peace resolution 377 A (V) of 3 November 1950 (Annex 22) at length and emphasises five features: the Council’s primary responsibility, the Assembly’s subsidiary responsibility, the hierarchical relationship between them, the condition precedent in operative paragraph 1, and the procedural rule that an emergency special session is for when the Assembly is not in ordinary session. Section C traces the Council’s exercise of its primary responsibility since the Session was convened: resolutions 1322 (2000), 1397 (2002), 1402, 1403, 1405 and 1435 (2002), the Roadmap’s transmission on 7 May 2003, the 5 October 2003 debate after the Maxim’s restaurant attack and Israel’s action in Syria (statements of China, the United Kingdom, Russia, Germany, France, Bulgaria, Chile, Angola and Cameroon quoted, each presenting the Roadmap as the only way forward), the 14 October 2003 defeat by US veto of the draft declaring the wall illegal (statements of the United Kingdom, Bulgaria, Russia and Germany quoted), the point that that draft never proposed requesting an advisory opinion, Syria’s immediate request to reconvene the Session, the withdrawal of the October advisory-opinion draft, and resolution ES-10/13. Russia then proposed the Roadmap draft on 30 October 2003, adopted unanimously as resolution 1515 on 19 November 2003. Section D(i) argues the rolling character of the Session (reconvened, as paragraph 4.31 puts it, on 12 separate occasions) and its sitting simultaneously with the regular session are inconsistent with Uniting for Peace, citing Ambassador Kirkpatrick’s 1982 letter on the 7th Session, Ambassador Negroponte’s May 2002 doubts, the 1956 ruling of the President of the 1st Session, resolution 1003 (ES-I) and the Office of Legal Affairs memorandum of 25 August 1967; that the Council was never seised of a draft proposing that it request an opinion, so there was no lack of unanimity on that matter (Wolfrum and Reicher are quoted for the precondition that the Council must first have discussed, and voted on, the topic); and that the 14 October veto was followed not by failure but by unanimous endorsement of the Roadmap, so the condition precedent was not met. Section D(ii) argues the Assembly in regular session would also have been ultra vires: Kelsen on Article 96 is quoted, Judge Schwebel and Judge Higgins are noted, the Expenses case is accepted for the Assembly’s concern with peace and security, and Articles 24(1), 35(3), 11, 12, 33, 34, 36, 37, 38, 52-54 and 99 are marshalled for the Council’s primary and, under Chapter VI, virtually exclusive competence in pacific settlement, from which a duty of Assembly restraint is derived.

  • Chapter 5, The Request Does Not Raise a Legal Question, paragraphs 5.1-5.17 (PDF p.94-99): A legal question under Article 96(1) and Article 65(1) must be reasonably specific — Article 65(2) requires an exact statement of the question — and legally certain; Israel’s objection is uncertainty, not that the question is political. The Court may interpret but must not reformulate or augment the question (the Permanent Court in the ILO Competence opinion is quoted). Section B(i): the question asks only for legal consequences and appears to assume illegality, although no legally binding determination of illegality exists; either the Court must first find illegality — a complex question of mixed fact and law the Assembly would have asked expressly if it had wanted it answered, on the Exchange of Greek and Turkish Populations authority — or it must assume illegality, which under Western Sahara would produce an opinion devoid of object or purpose and of no practical value, with consequences varying by the precise illegality assumed; Namibia is distinguished because resolution 276 (1970) had already made a binding determination of illegality. Section B(ii): the question does not specify for whom consequences are sought — the Assembly or another organ, Member States, Israel, a combination, or another entity — and the adopting record does not fill the gap. Section C concludes the question is not a legal question, so the Court has no discretion and must decline.

  • Chapter 6, Principles Relevant to Propriety and the Exercise of Discretion under Article 65(1), paragraphs 6.1-6.17 (PDF p.102-109): Article 65(1) is permissive; Western Sahara and Certain Expenses are quoted for the discretion and for the guiding principle of faithfulness to judicial character, and the Court’s own position that a reply should in principle not be refused and only compelling reasons should lead to refusal is recorded. Two judicial-character limits are developed from Eastern Carelia, whose conclusions are quoted at length: (a) absence of consent, as developed in Interpretation of Peace Treaties (the Court should decline where answering would be substantially equivalent to deciding a pending dispute), Namibia (no pending dispute between States, and South Africa appeared on the merits) and Western Sahara (consent is relevant to propriety, not competence, and lack of consent may make an opinion incompatible with judicial character where a reply would circumvent the consent principle), with Simma’s commentary; and (b) insufficient evidence for findings of fact, as developed in Interpretation of Peace Treaties, Western Sahara (where extensive documentary evidence had been received) and Rosenne and Bin Cheng — in the present case, it is submitted, the Court has received no evidence from Israel on the substance and the material from others, including the Secretariat, cannot be regarded as authoritative or reliable. A further compelling reason is added: the Court should not allow the advisory procedure to be used to obtain an opinion whose mere giving would undermine a delicate negotiation process endorsed by the Security Council. Paragraph 6.17 maps Chapters 7, 8 and 9.

  • Chapter 7, The Request Concerns a Contentious Matter in Respect of Which Israel Has Not Given Consent, paragraphs 7.1-7.14 (PDF p.110-114; chapter continues in part 3): Section A restates the two Chapter 6 tests. Section B: the issue is an integral part of the wider dispute over terrorism, security, borders, settlements and Jerusalem; resolution ES-10/14’s agenda item, its characterisation of Israel as the occupying Power and its references to the Green Line place it in that dispute; the Secretary-General’s Report sets the two sides’ legal positions side by side in Annexes I and II, and Annex II (the PLO summary) speaks of violations of Palestinian rights, Israel’s criminal liability, and de facto annexation interfering with territorial sovereignty and self-determination; the dispute is the fons et origo of the request, the adopting record abounds with statements for “Palestine” and an intent to send a powerful message to Israel, and Namibia’s mere differences of views are distinguished. Answering — whether by finding illegality, assuming it, or construing the question narrowly — would be substantially equivalent to deciding the pending dispute and would circumvent the consent principle. Section C begins: Israel has not consented, shown by its withdrawal on 19 November 1985 (effective 21 November 1985) of the optional-clause declaration deposited on 17 October 1956 and modified on 28 February 1984, whose reservations (c)-(e) are quoted and would in any event have excluded this dispute; by its not having accepted the Court’s compulsory jurisdiction in any multilateral treaty since 1975, with reservations expressly withholding consent in other cases (only two bilateral treaties in nearly 56 years have submitted to the Court, and only the 1951 Treaty of Friendship, Commerce and Navigation with the United States remains in force); and, beginning at paragraph 7.14, by the different settlement mechanisms in the agreements it has accepted, including the Israel-PLO agreements.

  • Chapter 7, Section C concluded and Section D, paragraphs 7.14-7.17 (PDF p.115-117): no Israel-PLO agreement and no unilateral declaration provides for compulsory settlement by the Court or otherwise. Arafat’s letter of 9 September 1993 (negotiated resolution of all permanent status issues), Article XV of the Declaration of Principles, Article XVII of the Gaza-Jericho Agreement and Article XXI of the Interim Agreement are quoted: disputes are resolved by negotiations through the Joint Liaison Committee, may be resolved by a conciliation mechanism to be agreed, and may be submitted to arbitration only on both parties’ agreement. “The position could not be clearer”: other mechanisms have been expressly preferred. Answering would be equivalent to deciding a significant element of the dispute — which is precisely what the co-sponsors of resolution A/RES/ES-10/13 are said to have been seeking — and would circumvent the consent principle, a fortiori where Israel has expressly excluded the Court for this dispute; and “Palestine” is not a State and has no standing before the Court, so the advisory jurisdiction cannot be used to circumvent the Statute’s scheme for a would-be litigant who could never appear.

  • Chapter 8, The Question Requires the Court to Speculate about Essential Facts and Make Assumptions about Arguments of Law, paragraphs 8.1-8.12 (PDF p.118-122): applying the Chapter 6 tests (facts that cannot be elucidated without hearing the parties; sufficient information and evidence for a judicial conclusion), Israel derives the factual ambit from Annex II to the Secretary-General’s report, the PLO’s summary legal position: military necessity (the threat’s nature and scale, the fence’s effectiveness against other means, motives, routing and construction section by section, including the short sections of wall, and the threat at different sections) and proportionality, including the PLO’s claimed extensive destruction of homes and property, infringements of freedom of movement, of the rights to education, work, an adequate standard of living and health care, arbitrary interference with the home, and the Closed Area regime. Such determinations would require extensive documentary, witness and expert evidence; the Court’s operational constraints do not permit them even in a contentious case; six weeks were allowed; Israel is not putting forward a case on the substance; and recent routing changes make even the non-Israeli material unreliable. The Court would also have to assume arguments of law on military necessity and proportionality, on the other instruments relied on, on annexation and on legal consequences. This is distinguished from Interpretation of Peace Treaties (no underlying dispute), Namibia (illegality already bindingly determined) and Western Sahara (extensive documentary evidence from all protagonists).

  • Chapter 9, Other Compelling Reasons Why the Court Should Decline to Answer, paragraphs 9.1-9.15 (PDF p.124-128): the Chapter 4 and 5 objections and the question’s uncertainty are also advanced as discretionary reasons. (A) Equity: good faith and “clean hands” (Judge Hudson in Diversion of Water from the Meuse quoted); “Palestine” is responsible for the terrorism the fence addresses, and under nullus commodum capere de sua injuria propria no one may reap advantage from his own wrong. (B) The Roadmap: an opinion would signal that pursuing objectives outside the agreed framework is acceptable, risking a green light for further terror, and would pre-empt the Phase III issues (borders, Jerusalem, settlements) whose sequencing depends on Phase I performance, above all ending terrorism; resolution ES-10/13 is not a binding or reasoned determination of illegality and cannot serve as the Namibia resolution 276 equivalent; an opinion on legal consequences without an anchor in the facts and the balance of rights would be counterproductive. The United States statement in the adopting debate is re-quoted, that involving the Court “could actually delay a two-State solution and negatively impact road map implementation” and “risks politicising the Court”.

  • Chapter 10, Summary and Conclusions, paragraphs 10.1-10.8 (PDF p.130-132): the Practice Direction No.11 summary. The Court lacks jurisdiction (ultra vires, Chapter 4; no legal question, Chapter 5), and in the alternative should decline (contentious matter without consent, Chapter 7; speculation about facts and assumptions about law, Chapter 8; clean hands and the Roadmap, Chapter 9). The common theme: the request would see the Court trespass into the conflict notwithstanding the Security Council’s unanimous endorsement of the Roadmap in resolution 1515 (2003) nineteen days before the request.

  • List of Annexes (PDF p.134-135, repeated at PDF p.137-138): 24 annexes, from the Margalit letters of 11 and 31 December 2003 (Annexes 1-2) to S/PV.4862 of 19 November 2003 (Annex 24).

  • Annex 1 (PDF p.140-141): Ambassador Margalit’s letter of 11 December 2003 to Registrar Couvreur, reproduced in full: the request raises contentious matters bearing directly on Israel’s security; Israel’s view is that the Court should not entertain it for reasons of discretion, jurisdiction and admissibility; adequate preparation would require at least a number of months, not weeks; pending proceedings risk a negative effect on Roadmap negotiations; the Court is invited to bifurcate the proceedings; Israel reserves all its rights, including a judge ad hoc under Article 31 of the Statute, and draws attention to Article 17(2) and Rule 34. The letter cites the requesting resolution by its draft symbol, A/ES-10/L.16 of 8 December 2003 (as printed in the original; the text copy garbles the symbol).

  • Annex 2 (PDF p.143-145): Ambassador Margalit’s letter of 31 December 2003, reproduced in full: “very considerable disquiet” with the Court’s Order of 19 December 2003 — the case title adopts the question’s language although the Secretary-General’s report used “the Barrier” for a system that is overwhelmingly a wire fence; the six-week time-limit, with no second round of written comments and a hearing three weeks after the statements, compares unfavourably with the 8½ weeks plus 30 days in the most recent priority advisory opinion; operative paragraphs 2 and 4 allow “Palestine” to file a statement and take part in the hearings although it is neither a State entitled to appear nor an international organisation, resolution 43/177 having changed only its designation in the United Nations system; a Member of the Court who played a leading role in the Emergency Special Session should not participate, and Israel will write separately under Rule 34(2); nothing in either letter accepts the Court’s jurisdiction.

  • Annex 3 (PDF p.147): resolution 3237 (XXIX) of 22 November 1974, reproduced in full (PLO observer status in the General Assembly and in conferences convened under United Nations auspices).

  • Annex 4 (PDF p.149-151): resolution 43/160 A of 9 December 1988, reproduced in full with its recorded vote of 117-2-31 (against: Israel, United States): the PLO and SWAPO are entitled to have their communications issued and circulated directly as official documents of the Assembly, of conferences convened under its auspices, and, through the Secretariat, of other United Nations organs and conferences.

  • Annex 5 (PDF p.153-154): resolution 43/177 of 15 December 1988, reproduced in full with its recorded vote of 104-2-36 (against: Israel, United States; Iran announced it was not participating): the Assembly acknowledges the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988, affirms the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967, and decides the designation “Palestine” should be used in place of “Palestine Liberation Organization” in the United Nations system, without prejudice to the PLO’s observer status and functions.

  • Annex 6 (PDF p.156-157): resolution 52/250 of 7 July 1998, reproduced in full: Palestine, in its capacity as observer, is conferred the additional participation rights in its annex — including participation in the general debate, inscription on the speakers’ list, the right of reply, points of order on Palestinian and Middle East issues, and co-sponsorship of draft resolutions and decisions on those issues (to be put to a vote only on a Member State’s request) — and “Palestine shall not have the right to vote or to put forward candidates”.

  • Annex 7 (PDF p.159): Ambassador Mekel’s letter of 26 January 2004 to the Secretary-General, reproduced in full: the Secretariat’s Dossier is unbalanced — it overlooks the self-defence context and omits Security Council resolutions 1269 and 1373, while including General Assembly resolution 194, the Rome Statute of the ICC and the Special Rapporteur’s reports without Israel’s circulated responses; urgent correction is requested.

  • Annex 8 (PDF p.161): Arafat’s letter of 9 September 1993 to Rabin, reproduced in full (recognition of Israel, acceptance of resolutions 242 and 338, renunciation of terrorism, responsibility over all PLO elements and personnel, and the Palestinian Covenant articles denying Israel’s right to exist declared inoperative).

  • Annex 9 (PDF p.163-165): S/PRST/2002/9 of 10 April 2002, with the Madrid Joint Statement of 10 April 2002 annexed, reproduced in full: the Council supports the Madrid statement and insists on immediate implementation of resolutions 1402 and 1403; the Madrid statement condemns violence and terrorism, calls for resolution 1402’s implementation (an immediate, meaningful ceasefire, Israeli withdrawal from Palestinian cities including Ramallah and Arafat’s headquarters, an end to all settlement activity under Tenet and Mitchell), and declares that “Terrorism, including suicide bombs, is illegal and immoral”.

  • Annex 10 (PDF p.167-168): the Quartet Statement of 16 July 2002 (New York), reproduced in full: condemnation of terrorism including suicide bombing; support for a final settlement within three years on President Bush’s June 24 statement and the two-state vision of resolution 1397; Palestinian reform (the 100-Day Reform Program and the Task Force on Reform) and new Palestinian security capabilities under unified command; Israel called on to ease closures, withdraw to its pre-September 28, 2000 positions as security improves, release frozen tax revenues, stop all new settlement activity and ensure humanitarian access; “The Israeli occupation that began in 1967 must end, and Israel must have secure and recognized borders”.

  • Annex 11 (PDF p.170-173): S/PRST/2002/20 of 18 July 2002, reproduced in full, supporting the 16 July 2002 Quartet Joint Statement, which is annexed and reproduced again in full.

  • Annex 12 (PDF p.175-179): the Quartet Statement of 20 December 2002 (Washington), reproduced in full, with Danish Foreign Minister Moeller’s speaking points and press statement appended as printed on the same pages: condemnation of the terror attacks by Palestinian extremist organizations; deploring of the killing of innocent Palestinian civilians and UN employees in IDF operations; substantial progress toward finalizing the three-phase roadmap; an immediate, comprehensive cease-fire (all Palestinian individuals and groups must end all acts of terror against Israelis, in any location) accompanied by Israeli supportive measures and withdrawal to the pre-Intifada status quo; implementation of the Bertini report; continued monthly revenue transfers; “occupation that began in 1967 will be ended though a settlement negotiated between the parties” (as printed); “Israeli settlement activity must stop, consistent with the recommendations of the Mitchell report”. Moeller’s points state the EU view that the roadmap should have been adopted that day and that the settlement freeze should be unconditional: “The settlements are illegal according to international law and a freeze should not be made contingent on a ceasefire”.

  • Annex 13 (PDF p.181): the Quartet Envoys Statement, London, 20 February 2003 (UN News Service), reproduced in full: very serious concern at violence and terror against Israelis and at Israeli military operations in the West Bank and Gaza leading to Palestinian civilian fatalities; reaffirmation of the December 20 call for an immediate, comprehensive cease-fire; welcome for the decision to appoint a Palestinian Prime Minister, who should be credible and fully empowered; Israel’s obligation, consistent with legitimate security concerns, to do more to ease the humanitarian and socio-economic situation, “alleviating the daily burdens of life under occupation”.

  • Annex 14 (PDF p.183-184): the Quartet Statement of 22 June 2003 (Dead Sea, Jordan), reproduced in full: welcome for Prime Minister Abbas’s appointment and for both authorities’ acceptance of the roadmap presented on 30 April 2003; the Quartet “deplore and condemn the brutal terror attacks against Israeli citizens carried out by Hamas, Palestinian Islamic Jihad, and the Al-Aqsa Martyrs Brigade since the roadmap’s presentation”; consolidation of all security services under Prime Minister Abbas; recognition of Israel’s right to self-defense with a call to respect international humanitarian law and avoid civilian casualties; “The Quartet recalls its position that settlement activity must stop”, welcoming Prime Minister Sharon’s Aqaba undertaking to remove unauthorized outposts.

  • Annex 15 (PDF p.186-188): the Quartet Statement of 26 September 2003 (New York), transmitted by the Secretary-General’s letter of 6 October 2003 (S/2003/951), reproduced in full: implementation of the road map has stalled; condemnation of “the vicious terror attacks of August and September carried out by Hamas, Islamic Jihad and the Al-Aqsa Martyrs Brigade”; consolidation of the Palestinian Authority security services under an empowered Prime Minister and Interior Minister as the sole armed authority; Israel called on to avoid civilian casualties, to take no action undermining trust (the road map words quoted, including deportations and demolition of Palestinian homes and property), and to ease the movement of people and goods; “settlement activity must stop, and note with great concern the actual and proposed route of Israel’s West Bank fence, particularly as it results in the confiscation of Palestinian land, cuts off the movement of people and goods and undermines Palestinians’ trust in the road map process, as it appears to prejudge final borders of a future Palestinian State”.

  • Annex 16 (PDF p.190): Security Council resolution 62 (1948) of 16 November 1948 (S/1080), reproduced in full: an armistice shall be established in all sectors of Palestine, the parties being called on, as a further provisional measure under Article 40, to negotiate its immediate establishment, including the delineation of permanent armistice demarcation lines.

  • Annex 17 (PDF p.192; agreement continues in part 4): S/1302/Rev.1 of 3 April 1949 — Acting Mediator Ralph J. Bunche’s cablegram of 3 April 1949 transmitting the General Armistice Agreement between the Hashemite Jordan Kingdom and Israel, signed at Rhodes that evening; the Agreement’s Preamble (responding to the Security Council resolution of 16 November 1948) is reproduced, and its articles follow in part 4.

  • Annex 17 concluded (PDF p.193-199): Articles I-XII of the Agreement and Annex II’s definition of defensive forces, reproduced in full. Article I affirms the injunction against resort to military force, each Party’s right to security and freedom from fear of attack, and the armistice as a step toward restoration of peace; Article II(2) provides that no provision shall prejudice the rights, claims and positions of either Party in the ultimate peaceful settlement; Article VI provides for the Iraqi-sector line in stages, for compensation (twenty kilometres of new road for the Tulkarem-Qalqiliya road), and for the full rights of residence, property and freedom of inhabitants of affected villages, with Israeli forces prohibited from such villages; Article VI(9) records the lines as agreed “without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto”; Articles VII-XI limit forces within ten kilometres to defensive forces, establish the Special Committee (Mount Scopus, the Holy Places, the Latrun pumping station among its matters) and the five-member Mixed Armistice Commission whose interpretation of provisions other than the Preamble and Articles I-II shall prevail; Article XII keeps the Agreement in force until a peaceful settlement, with revision or suspension (other than Articles I and III) by mutual consent or through a Secretary-General-convoked conference after one year. Signed at Rhodes on 3 April 1949 by Ahmed Sudki El-Jundi and Mohamed Maayte for the Hashemite Jordan Kingdom and Reuven Shiloah and Moshe Dayan for Israel; the English text is the only authentic one.

  • Annex 18 (title page PDF p.200; article PDF p.201-204): USA Today, 14 March 2002, “Terrorist says orders come from Arafat”, by Matthew Kalman, reproduced in full — the press source cited in Chapter 3 for the Brigades attribution claim. Brigade leader Maslama Thabet is quoted as saying the brigade is the armed wing of the organization, that it receives its instructions from Fatah and that its commander is Yasser Arafat himself (wording verified in the original, PDF p.201; the text copy renders “armed” as “arrned” and interleaves the passage). Arafat’s spokesmen differ (Rudeineh has never heard of Thabet; Odwan confirms the brigade is “loyal to President Arafat”), and Israeli security officials concede Arafat is not involved in directing on-the-ground operations while saying his calls for holy war act as a directive and that he provides money through Barghouti. The article records that most brigade members receive Palestinian Authority salaries, lists the brigade’s claimed attacks of 2-12 March 2002, gives the Israeli army’s fatality figures (Fatah 45 and Hamas 100 Israelis killed in 2001; since the start of 2002, Fatah 57 and Hamas 27), and quotes Al-Quds University professor Mahmoud Muhareb on siege and near-starvation producing would-be suicide bombers.

  • Annex 19 (title page PDF p.205; communiqué PDF p.206-207): the Prime Minister’s Office account of 18 January 2004, reproduced in full (the statement quoted at paragraph 3.79). Sharon told the ministers and the steering committee preparing for the Court’s deliberations that there would be no route change as a result of Palestinian or UN demands, including the Court’s; that the fence’s operative experience was excellent at preventing terror but was not satisfactory in all matters relating to the damage to Palestinians’ quality of life (Sharon’s wording, verified in the original, PDF p.206; the text copy renders “all” as “al1”); that he was personally monitoring the complaints and that route changes to reduce mishaps without harming security were possible; and that Acting Attorney-General Arbel’s determination indicated legal difficulties in defending the State’s position before the High Court of Justice on certain points of the route.

  • Annex 20 (title page PDF p.208; statement PDF p.209-210): Prime Minister Mahmoud Abbas’s Aqaba statement of 4 June 2003, reproduced in full — acceptance of the road map “without any reservations”, renunciation of terror against Israelis wherever they might be, an end to the militarization of the intifada, rule of law and a single political authority, and “a complete end to violence and terrorism” (the statement quoted at length at paragraph 3.84 in part 2).

  • Annex 21 (title page PDF p.211; statement PDF p.212): Prime Minister Ariel Sharon’s Aqaba statement of 4 June 2003, reproduced in full — security as his paramount responsibility, support for the two-state vision and the roadmap as adopted by the Israeli government, territorial contiguity for a viable Palestinian state, no unilateral actions prejudging negotiations, and immediate removal of unauthorized outposts (quoted at length at paragraph 3.85 in part 2).

  • Annex 22 (title page PDF p.213; reproduction PDF p.214-216): resolution 377 (V), “Uniting for peace”, of 3 November 1950, reproduced in full from the General Assembly Fifth Session Official Records (printed p.10-12), including operative paragraph 1’s condition — Council failure to exercise its primary responsibility “because of lack of unanimity of the permanent members” — the Peace Observation Commission and Collective Measures Committee it establishes, and the annexed rules amendments for emergency special sessions (the resolution quoted at paragraphs 4.11-4.15 in part 2). The Official Records pages also carry the tail of the preceding Korea resolution and the opening of resolution 378 (V).

  • Annex 23 (title page PDF p.217; record PDF p.218-231, continuing in part 5): S/PV.4836, the Security Council’s 4836th meeting of 5 October 2003, reproduced. Syria (Mr. Mekdad) reads its Foreign Minister’s letter on Israel’s guided-missile strike that morning at Ein Saheb, north-west of Damascus, and submits a draft resolution; Israel (Mr. Gillerman) answers that the day before a suicide bomber had murdered 19 civilians at the Maxim’s restaurant in Haifa, that Islamic Jihad (headquartered in Damascus) claimed responsibility, and that the Ein Saheb base was a Syrian- and Iranian-sponsored training facility, Israel’s strike “a clear act of self-defence in accordance with Article 51 of the Charter”. Pakistan, Spain, China, the United Kingdom, Russia, Germany, France, Bulgaria, Chile, Mexico, Angola, Guinea and Cameroon then speak: the Haifa bombing is condemned by each, the strike on Syria is condemned as a violation of international law by most (the United Kingdom calling it “unacceptable” and an escalation while stressing the responsibility of those permitting terrorism), and the road map is presented as the only way forward; the United States, as President, says Syria “is on the wrong side of the war on terrorism” and that President Bush had that morning conveyed condolences to Prime Minister Sharon and agreed on avoiding heightening tension. The League of Arab States statement (Mr. Mahmassani) begins at PDF p.231 and continues in part 5.

Key passages

Evidence the work relies on

  • The Court’s own procedural record as Israel presents it: Israel’s letters of 11 and 31 December 2003 (Annexes 1-2), its confidential Rule 34(2) letter on Judge Elaraby, and its letter of 26 January 2004 on the Dossier (Annex 7), and the Court’s Order of 19 December 2003.

  • United Nations documents, cited by Dossier number where given: resolutions 242 (1967), 338 (1973), 62 (1948), 1397, 1402, 1403, 1435 (2002), 1515 (2003), 1269 and 1373, and General Assembly resolutions 3237 (XXIX), 43/160 A, 43/177, 52/250, ES-10/13 and ES-10/14; the Secretary-General’s Report of 24 November 2003 (A/ES-10/248, Dossier No.52); the verbatim record A/ES-10/PV.23 (Dossier No.42) for the Uganda, United States, United Kingdom and Singapore statements.

  • The peace-process instruments: the Exchange of Letters of 9-10 September 1993 (Annex 8), the Declaration of Principles (Dossier No.65), the Gaza-Jericho Agreement, the Interim Agreement (Dossier No.68), the Hebron Protocol, the Note for the Record, the Wye River Memorandum (Dossier No.69), the Sharm El-Sheikh Memorandum, the Mitchell Committee Report of 30 April 2001, the Tenet Cease-Fire Plan of 10 June 2001, the Quartet statements (Annexes 9-15), and the Roadmap (S/2003/529, Dossier No.70).

  • The Israel-Jordan General Armistice Agreement of 3 April 1949 (Annex 17), for the status of the Armistice Demarcation Line.

  • Case law on judicial impartiality: Prosecutor v. Anto Furundzija (ICTY Appeals Chamber, 21 July 2000, paragraph 189), and, in a footnote, In re Pinochet, In re Murchison, Liteky v. United States, Miglin v. Miglin and Webb v. R; and the Court’s Orders in the Special Rapporteur (1998) and Namibia (1970) advisory proceedings on time-limits.

  • Press reporting for a single attribution claim: USA Today, 14 March 2002, at p.A.06 (Annex 18), quoting a Brigades leader on instructions from Fatah. The attack figures, alert figures and casualty accounts in Chapter 3, Section D, are given without a cited source in the pages read in part 1.

  • The Uniting for Peace resolution 377 A (V) of 3 November 1950 (Annex 22), quoted at length at paragraphs 4.11-4.15, and the verbatim records relied on for the Session’s convening and the Council debates: S/PV.3747 and S/PV.3756 (March 1997), A/ES-10/1 and A/ES-10/PV.1 (April 1997), S/PV.4836 of 5 October 2003 (Annex 23), S/PV.4841 and S/PV.4842 of 14 October 2003 (Dossier Nos.44-45), and S/PV.4861 and S/PV.4862 of 19 November 2003 (Annex 24).

  • The Aqaba Summit statements of 4 June 2003: Prime Minister Abbas (Annex 20) and Prime Minister Sharon (Annex 21), and Sharon’s statement of 18 January 2004 (Annex 19).

  • Commentary and case law on vires, certainty and discretion in part 2: Kelsen, The Law of the United Nations (1950), p.546; Schwebel (1984) 78 AJIL 869; Higgins in Lowe and Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1996); Wolfrum (ed.), United Nations: Law, Policies and Practice (1995), Vol.2, p.1343; Reicher (1981) 20 Columbia Journal of Transnational Law, p.40; Simma (ed.), The United Nations Charter: A Commentary (2001), pp.387-389, and (2nd ed.) Vol. II, pp.1185, 1187; Daillier and Pellet, Droit International Public (6th ed.), p.349; Lauterpacht, The Function of Law (1933), p.253; Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. II, pp.992-993; Bin Cheng, General Principles of Law (1953), p.298; and the advisory jurisprudence of both Courts: Eastern Carelia (1923), ILO Competence (1926), Exchange of Greek and Turkish Populations (1925), Interpretation of Peace Treaties (1950), Competence of the General Assembly (1950), IMCO (1960), Certain Expenses (1962), Northern Cameroons (1963), Namibia (1971), Western Sahara (1975), Nuclear Weapons (1996) and the Special Rapporteur opinion (1999), with Oil Platforms (1996) and United States Diplomatic and Consular Staff in Tehran (1980) on certainty and jurisdiction.

  • The annexes reproduced in part 4: the completion of Annex 17 (Articles I-XII and Annex II of the Armistice Agreement); Annex 18, the USA Today article of 14 March 2002; Annex 19, the Prime Minister’s Office communiqué of 18 January 2004; Annexes 20-21, the Aqaba statements; Annex 22, resolution 377 (V) in its Official Records form; and Annex 23 in part, S/PV.4836 of 5 October 2003 (the record continues in part 5).

  • The annexes reproduced in part 3 (Annexes 1-17 of 24): the Margalit letters of 11 and 31 December 2003 (Annexes 1-2, the second objecting to the Court’s Order of 19 December 2003 on the case title, the six-week time-limit, the participation of “Palestine” and the position of Judge Elaraby); resolutions 3237 (XXIX), 43/160 A, 43/177 and 52/250 on the status and participation of the PLO and “Palestine” (Annexes 3-6, with the recorded votes on 43/160 A and 43/177); the Mekel letter of 26 January 2004 on the Dossier (Annex 7); Arafat’s letter of 9 September 1993 (Annex 8); S/PRST/2002/9 with the Madrid Joint Statement of 10 April 2002 (Annex 9); the Quartet Statement of 16 July 2002 (Annex 10) and S/PRST/2002/20 annexing it again (Annex 11); the Quartet Statements of 20 December 2002 (Annex 12, with Foreign Minister Moeller’s speaking points and press statement), 20 February 2003 (Envoys, Annex 13), 22 June 2003 (Annex 14) and 26 September 2003 (Annex 15, transmitted as S/2003/951); Security Council resolution 62 (1948) (Annex 16); and the Israel-Jordan General Armistice Agreement as transmitted by S/1302/Rev.1 (Annex 17, begun). Case law added in Chapter 9: Factory at Chorzów, the Free Zones case, Eastern Greenland, and Diversion of Water from the Meuse (Judge Hudson on clean hands), with separate and dissenting opinions in Tehran Hostages and Nicaragua on good faith and abuse of rights.

Analysis

The statement is an advocacy filing, not a neutral record: every factual section is expressly framed as relevant only to jurisdiction, propriety and the Article 65(1) discretion, and Israel repeatedly reserves the substance of the fence’s legality, routing and fabric-of-life effects as not properly before the Court. Its method in part 1 is to build the discretionary case first, through context, before the jurisdictional chapters: the Roadmap is presented as a Security Council-endorsed, phased bargain whose first obligation is a cessation of Palestinian violence, so that a Court answer is characterised in advance as cutting across a political process; and the scale and civilian character of the attacks, presented in aggregate figures and in named-casualty accounts, are presented as the half of the reality the request omits. Where the statement quotes instruments (the Arafat letter, the Roadmap phases, resolution 1515, the four Assembly statements), the quotations are set out at length and credited; where it gives figures for attacks, alerts and casualties, part 1 gives no source for them. Its characterisations of other actors — of the PLO and Palestinian Authority as responsible for the organisations’ attacks, of the Secretariat’s Dossier as unbalanced, and of Judge Elaraby as apparently biased — are Israel’s submissions, attributed as such on this page, and are contested matters that later parts and other sources in the wiki address from other positions.

In part 2 the method shifts from context to doctrine: the condition-precedent argument is built by quoting resolution 377 A (V) in full and then narrating the Council’s October-November 2003 record statement by statement, so that resolution 1515 appears as the Council exercising, not failing to exercise, its responsibility; the legal-question argument is built on certainty rather than on the question’s political character; and the discretion argument is built almost entirely from the Court’s own earlier formulations, with Israel’s factual assertions (notably that it has submitted no evidence on the substance) presented as the circumstance that distinguishes Western Sahara.

In part 3 the statement completes its argument by the end of Chapter 10 and then reproduces its annexes. The annexes are not a neutral appendix: Annexes 1, 2 and 7 are Israel’s own procedural correspondence, and Annexes 3-6 are the resolutions Israel reads as confining “Palestine” to observer status. The Quartet and Council materials (Annexes 9-15) are reproduced in full, including passages that sit against the statement’s framing — the repeated position that settlement activity must stop, the 26 September 2003 statement’s concern at the fence’s route and its apparent prejudging of final borders, and Foreign Minister Moeller’s speaking points in Annex 12 stating that the settlements are illegal according to international law and that a freeze should not be made contingent on a ceasefire. Those passages stand in the file as reproduced, attributed to their authors, alongside the passages on terrorism and on Palestinian obligations on which the statement’s argument relies.

In part 4 the annexes supply the documents the argument quotes most heavily. Two of them cut in more than one direction: Annex 18, the only press source for the attribution of the Brigades’ attacks to Arafat, itself records Arafat’s spokesmen’s differing answers and the Israeli security officials’ concession that Arafat did not direct on-the-ground operations; and Annex 23, annexed to show the Council exercising its responsibility, reproduces in full a debate in which most speakers condemned Israel’s strike on Syria as a violation of international law while condemning the Haifa bombing and affirming the road map.

People, organizations, places and events

International Court of Justice, Tenth Emergency Special Session of the General Assembly, UN General Assembly Resolution 377 A (V) — Uniting for Peace, Quartet, Quartet Roadmap, Palestine Liberation Organization, Fatah, Al-Aqsa Martyrs’ Brigades, Hamas, Popular Front for the Liberation of Palestine, Islamic Jihad, Nabil Elaraby, Mahmoud Abbas, Arik Sharon, Green Line, UN Security Council Resolution 1515, UN Security Council Resolution 1397, UN Security Council Resolution 1322, Status of Eastern Carelia, Western Sahara Advisory Opinion, Namibia Advisory Opinion, UN General Assembly Resolution ES-10/14, UN General Assembly Resolution 3237, Israel–Jordan Armistice Agreement (Rhodes, 1949)

Concepts

Separation wall, Two-state solution

How it relates to other sources

This is Israel’s filing in the same proceedings that produced Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: the Opinion records that the Court found jurisdiction and no compelling reason to decline, against the submissions made here, and its part 1 summarises and answers several of them. The Elaraby challenge recorded here is the matter that Judge Elaraby’s separate opinion records as having been decided by the Court’s Order of 30 January 2004, that the matters raised by Israel were not such as to preclude him from sitting. The Roadmap phases and resolution 1515 endorsement set out here are the same instruments ingested as A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (Quartet, transmitted 7 May 2003) and Resolution 1515 (2003) endorsing the Quartet Roadmap (19 November 2003); Israel’s reading gives the cessation-of-violence gateway priority over the settlement-freeze and withdrawal elements that the Roadmap page also records. The fence, the Green Line and the High Court petitions overlap with Beit Sourik Village Council v. Government of Israel, the judgment of 30 June 2004 on the route west and northwest of Jerusalem.

Open questions

  • The Park Hotel attack of 27 March 2002 is given as injuring 145 people at paragraphs 0.1, 3.60 and in the March 2002 list at paragraph 3.65, and as injuring a further 140 at paragraph 3.70; both figures are as printed in their respective paragraphs in part 1.
  • The statement’s title page is dated 30 January 2004 while its cover letter and Registry filing stamp are dated 29 January 2004; the file is named for the letter’s date, following the request’s title.
  • The Maxim’s restaurant attack of 4 October 2003 is given as killing 21 people at paragraphs 3.61 and 3.73 and as killing 19 people at paragraph 4.19, with 60 injured in each account; both death figures are as printed in their respective paragraphs.
  • The Session’s reconvenings since April 1997 are given as 11 separate occasions at paragraph 4.10 and, at paragraph 4.31, the Session is said to have been convened and reconvened on 12 separate occasions since April 1997; both counts are as printed.
  • The List of Annexes (both copies, PDF p.134 and p.137) dates the Annex 13 Quartet statement “20 February 2002”; the statement reproduced as Annex 13 (PDF p.181) is the Quartet Envoys Statement, London, dated 20 February 2003. Both are as printed in their respective places.
  • The Annex 4 reproduction of resolution 43/160 A heads its third page “A/RES/43/160 of 4 December 1988” (PDF p.151), against 9 December 1988 on its first page and in the List of Annexes; both dates are as printed.
  • The List of Annexes (PDF p.135) styles the Aqaba speakers “Prime Minster Abbas” and “Prime Minster Sharon” (as printed, “Minster”), and Annex 1’s letter (PDF p.140) cites the requesting resolution by its draft symbol A/ES-10/L.16 of 8 December 2003 (as printed in the original) where the statement elsewhere cites the adopted resolution ES-10/14; each is recorded as printed.
  • The Annex 12 reproduction of the Quartet Statement of 20 December 2002 reads “occupation that began in 1967 will be ended though a settlement negotiated between the parties” (PDF p.176, “though” as printed in the original).
  • In Annex 23, Israel’s statement gives four Israeli Arabs among the Maxim’s restaurant victims (PDF p.222) and the United States statement gives five Israeli Arabs among the 19 killed (PDF p.231); both are as printed in the record as reproduced.
  • Whether the figures for alerts, incidents and casualties in Chapter 3, Section D, are sourced in the annexes is not established in parts 1-2.

Coverage

PDF p.1-231 of 246, read in parts 1-4 of 5. Part 5 (PDF p.232-246) remains: the rest of Annex 23 and Annex 24.

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