US embassy cable - 04THEHAGUE290

UNCLAS SECTION 01 OF 02 THE HAGUE 000290 
 
SIPDIS 
 
DEPARTMENT FOR L - TAFT/SCHWARTZ, L/UNA - 
MATHIAS/LAMOTTE/COGAN 
 
E.O. 12958: N/A 
TAGS: AFIN, AORC, ICJ 
SUBJECT: ICJ: 48 STATEMENTS FILED IN FENCE PROCEEDING 
 
REF: A. WWW.ICJ-CIJ.ORG/ICJWWW/IDOCKET/IMWP/IMWPFRAME .HTM 
 
     B. THE HAGUE 251 
     C. PARIS 690 
 
1. (SBU) Summary: The International Court of Justice (ICJ) 
received forty-eight written statements by its deadline of 
January 30 in the advisory opinion proceedings concerning 
"the legal consequences of the construction of a wall in the 
occupied Palestinian territory" (the Fence Case).  While the 
statements varied in their attention to the legality of the 
fence, the forty-four states were almost evenly divided 
between those which argued that the Court should not provide 
an opinion in the case and those that argued that the Court 
should find the Fence to be illegal under international law. 
While the names of all of the submitting parties -- 
forty-four states, the United Nations, Palestine, the Arab 
League, and the Organization of the Islamic Conference (OIC) 
-- may be found at the ICJ website (ref a), it is the Court's 
intention that the written statements themselves remain 
confidential at least until February 23, the date on which 
 
SIPDIS 
the hearings in the case are scheduled to commence.  The UN 
submitted what it described as a factual statement but 
advised that it will not participate in the oral hearings. 
The Court also rejected (13-1) Israel's challenge to the 
participation in the case of Egyptian Judge Nabil Elaraby. 
End summary. 
 
2. (SBU) On Tuesday, February 3, the ICJ Registry distributed 
to all UN Member States represented in The Hague copies of 
the statements submitted in the Fence Case (full set sent by 
DHL to L/UNA).  Among the submissions, there are several of 
note: 
 
-- The UN submitted "factual information" in order "to 
supplement" the Secretary General's report of November 24, 
2003 (A/ES-10/248).  At the same time, a cover letter from 
the SYG informed the Court "that the United Nations will not 
present oral statements and comments to the Court during the 
hearings" of the case. 
 
-- Palestine submitted a three volume statement consisting of 
an approximately 300 page written statement, an annex of 
several maps and photographs of the fence, and fourteen 
documentary annexes.  It asks the Court to find, among other 
things, that Israel is an occupying power under the Fourth 
Geneva Convention; that Israel "has no right to construct and 
operate the Wall"; that the fence violates international 
humanitarian and human rights law; that its construction 
involves unlawful confiscation of property; and that it is 
discriminatory.  Describing Israel's actions as "grave 
breaches" of international law, it further asks the Court to 
find the fence violates Palestinian rights of 
self-determination and that Israel is bound to cease 
construction of and dismantle the fence, compensate for 
damage and injury, and "heed the will of the international 
community."  Palestine also argues that other States are 
obliged to cooperate so as to bring an end to the fence. 
 
-- Many of the statements are strongly supportive of the 
Palestinian submission and argue that the Court should find 
the fence to be illegal under international law.  These 
include Egypt, Jordan, the Arab League, the OIC, Saudi 
Arabia, Syria, North Korea (which likens the fence to the 
North-South demarcation line on the Korean peninsula), Cuba, 
Malaysia, Pakistan, South Africa, Indonesia, Morocco, Yemen, 
Lebanon.  Several others submitted short (one or two page) 
submissions reaffirming views they expressed during UN 
General Assembly (UNGA) debates in support of the Palestinian 
position. 
 
-- Israel submitted two volumes consisting of an 
approximately 120 page written statement and a documentary 
annex.  Its argument focuses on the propriety of the ICJ 
addressing the request submitted by the UNGA.  The submission 
focuses on issues relating to what it sees as the "fairness" 
of the proceedings as well as the jurisprudence of the Court, 
which, it says, should lead the Court to find either that it 
lacks jurisdiction over the request or that it must decline 
to answer the request on grounds of propriety. 
 
-- While no other state defends the legality of the fence, 
several submitted statements arguing that the Court should 
decline to issue an opinion for reasons of propriety (though 
some added that, in their view, the fence is 
counterproductive or illegal).  These include, in addition to 
the USG (ref b), the United Kingdom, Australia, Canada, the 
Czech Republic, France (see below), Spain, the Netherlands, 
Greece, Norway, Japan, Germany, Italy, Micronesia, Marshall 
Islands and Palau. 
 
-- As expected (ref c), France filed a statement providing 
its views on the illegality of the fence.  At the same time, 
it associates with the position of the European Union, which 
Ireland, as President of the EU, explained to the Court as 
follows: "the EU believes that the proposed request for an 
Advisory Opinion . . . is inappropriate.  It will not help 
the efforts of the two parties to relaunch a political 
dialogue." 
 
-- Russia submitted a statement which essentially quotes its 
own statement made during the UNGA vote on the advisory 
opinion, adding its belief "that any response of the Court to 
the General Assembly's request, whether or not it decides to 
give an advisory opinion, should not hamper or create 
additional obstacles for (a) negotiating process or make the 
two-State solution impossible." 
 
-- Switzerland submitted a statement in which it found no 
decisive reason for the Court to refuse to issue an opinion 
in the case and focused on the applicability of instruments 
of international human rights and humanitarian law in the 
territories. 
 
3. (SBU) On January 30, the Court also rejected in a 13 to 1 
decision an Israeli request that Egyptian Judge Elaraby not 
participate in the case due to his previous involvement in 
similar issues while posted to the Egyptian Mission to the UN 
in New York.  The Court found that Israel's request did not 
point to any instance of Judge Elaraby having expressed a 
view on the questions posed to the Court in this case.  As a 
result, it found no basis "to preclude Judge Elaraby from 
participating in the present case."  Judge Buergenthal 
(American) dissented. 
SOBEL