US embassy cable - 04THEHAGUE504

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 000504 
 
SIPDIS 
 
DEPARTMENT FOR L - TAFT/SCHWARTZ, L/UNA - 
MATHIAS/LAMOTTE/COGAN 
 
E.O. 12958: DECL: 02/27/2014 
TAGS: AFIN, AORC, ICJ 
SUBJECT: ICJ FENCE PROCEEDINGS WRAP-UP 
 
REF: A. OLC/HAGUE-STATE/L EMAIL REPORTS 
     B. HTTP://212.153.43.18/ICJWWW/IDOCKET/IMWP/IMWP FRAM- 
        E.HTM 
 
1.(SBU) Summary: From February 23 to 25 the International 
Court of Justice (ICJ) heard arguments from twelve states, 
two organizations and Palestine in its case assigned the 
title, "Legal Consequences of the Construction of a Wall in 
the Occupied Palestinian Territory."  In general, the 
atmosphere in the ICJ's courtroom at the Peace Palace was 
judicial -- as in the usual case, all fifteen judges sat in 
their black robes and white collars on a raised dais and 
listened patiently, and silently, while advocates pled their 
arguments below them.  The general decorum maintained 
throughout, with the most strident rhetoric reserved for the 
German and French law professors who presented arguments for 
the Arab League and Organization of the Islamic Conference 
(OIC), respectively, on the final day.  Even outside the 
Peace Palace, demonstrators on both sides of the fence made 
their cases without incident, the Dutch having prepared 
efficiently for the occasion by blocking traffic in the area 
and staggering the times protesters could gather.  Attention 
now turns to the deliberations and the possibility of an 
advisory opinion being issued in the near-term.  End summary. 
 
2. (SBU) The ICJ held its long-awaited hearings on the United 
Nations General Assembly's request for an advisory opinion as 
to the legal consequences of the security barrier (Israel's 
term) or "the Wall" (Palestine's term) Israel is constructing 
in the West Bank. The media tents and protesters outside did 
not change the basic fact that judicial proceedings were 
being held in the Peace Palace, and the atmosphere inside 
approximated the atmosphere of other proceedings embassy 
legal officers have attended in recent years (except for the 
larger than usual attendance of approximately 250 people in 
the courtroom).  On the first day, Palestine was granted the 
whole morning (three hours) to present its case, and it did 
so, following the introduction of Palestinian UN Permanent 
Representative Nasser al-Kidwa, with the assistance of 
American, British, Australian, Egyptian and Belgian 
advocates.  Following Palestine were, on the 23rd, South 
Africa, Algeria, Saudi Arabia, Bangladesh; on the 24th 
Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, 
Senegal; and on the 25th Sudan, the Arab League and the OIC. 
Apart from Palestine, all delegations were provided 
forty-five minutes each to make their arguments.  In the 
courtroom were dozens of representatives of governments which 
had submitted written comments to the Court in January, 
including an official Israeli delegation. 
 
3. (SBU) Palestine led off with a short but effective factual 
presentation, complete with slides of maps and photographs, 
and throughout the hearing other participants echoed the 
factual presentation.  Although the advocates tended to 
emphasize different aspects of the question, three principal 
categories of arguments were presented throughout the 
hearing: first, that the UNGA had the competence to make the 
request and the ICJ has no grounds on which to decline to 
render an opinion; second, that the Fence is being built on 
occupied territory to which the Fourth Geneva Convention on 
the Protection of Civilians applies and, on this ground and 
others, violates various provisions of international 
humanitarian and human rights law; and third, that legal 
consequences flow from these violations for Israel, other 
states, and international organizations, particularly the 
UNGA and the UN Security Council.  A detailed summary of the 
individual arguments may be found in ref e-mails, while the 
transcripts of the proceedings may be found at the ref 
website. 
 
4. (SBU) While the refs detail the arguments presented, 
several themes may be identified as dominating the proceeding: 
 
-- ICJ Jurisdiction: All argued in favor of the Court's 
jurisdiction, the UNGA's competence to request the opinion, 
the impossibility of the Court refusing to issue an opinion, 
and the propriety and value of the Court doing so. 
 
-- The Fence itself: Most of the delegations argued that the 
problem was less a security fence in general but "the 
specific characteristics" of the current fence.  Consistently 
advocates said that they would have no difficulties accepting 
a fence built either on the green line (the 1949 armistice 
boundary) or on Israeli territory.  Most focused attention on 
how the fence deals with settlements, and the fence was 
almost universally derided as an attempt to annex occupied 
territory, Israel's assertion of a "temporary" barrier 
dispatched as insincere or untrue.  One advocate alluded to 
press reports that the Israeli government would alter the 
route of the fence as irrelevant to the proceedings.  While 
most employed fairly straightforward descriptions, some 
resorted to sharp rhetorical barbs, such the Arab League's 
advocate, Professor Michael Boethe, who referred to 
"fragmentation of the Palestinian space" as 
"Bantustanization." 
 
-- Terrorism: Many of the advocates claimed to understand 
Israel's legitimate concerns about terrorism.  Several, 
including Palestine's al-Kidwa, urged the Court to 
distinguish between attacks on Israelis within the Green Line 
and attacks in the territories against "the occupation", 
settlers and soldiers.  Jordan's Prince al-Hussein condemned 
suicide attacks as "nothing less than horrific" but also 
observed that such bombings "must be weighed against almost 
four decades of Israel dominating and, by virtue of its 
occupation, degrading, an entire civilian population."  The 
OIC's advocate was rather strident on this score, with 
Israeli and UK official observers believing she tiptoed on 
the line of justifying suicide bombers. 
 
-- The role of the UNGA: Most delegations made the argument 
that the UNGA bears, in one advocate's phrase, "a permanent 
responsibility over the question of Palestine."  One noted 
that the UNGA's role in Palestine predates Israel's 
existence, and several made reference to Palestinian 
territorial rights on the basis of the 1947 UNGA resolution 
(181) which partitioned the territory for a Jewish and Arab 
state in British Mandatory Palestine.  For many, the question 
of the UNGA role had particular relevance in considerations 
as to what the UNGA would be entitled to do in the event the 
ICJ finds the fence to violate international law.  Several 
delegations bemoaned the fact that the Security Council had 
not taken 'effective' action on the Fence issue, giving the 
UNGA a further basis to take action on its own behalf. 
 
-- The impact on the peace process: Advocates took strong 
issue with the argument, presented in writing by the UK, USG, 
Canada, Australia and several others, that an opinion would 
undermine efforts to enable the Palestinians and Israelis to 
negotiate a final settlement of the dispute.  Jordan's lawyer 
argued strenuously that the relationship between an opinion 
and the roadmap "needs disentangling," emphasizing that, in 
Jordan's view, the roadmap "in legal terms . . . expresses 
little more than aspirations."  In any event, he said, the 
roadmap is not an "exclusive vehicle for settling particular 
matters such as the Wall," and concurrent action by the UNGA 
or the ICJ is not precluded.  The idea that an opinion would 
harm the peace process is "mere guesswork."  Belgian advocate 
(for Palestine) Jean Salmon made the unfortunate comment in 
favor of an opinion's value to Palestine, "if you want the 
wolf and the lamb to negotiate, then the lamb needs a minimum 
amount of protection." 
 
-- Violations of humanitarian and human rights law: All 
delegations asserted that the fence violates international 
humanitarian law (IHL), in particular the law governing the 
rights and responsibilities of an occupying power 
(specifically referring to the Fourth Geneva Convention of 
1949 and the 1907 Hague Regulations).  Several sought to 
discredit Israel's long-maintained argument that the Fourth 
Geneva Convention does not apply in the occupied territory. 
Persistent reference was made to the obligation of an 
occupying power, under Article 47 of the Fourth Geneva 
Convention, not to permit population transfers into or out of 
occupied territory, described on several occasions as a 
"grave breach" of the Convention punishable as a war crime. 
Several advocates referred approvingly to the February 18 
press release of the International Committee of the Red Cross 
(ICRC) which concluded that "the West Bank Barrier, in as far 
as its route deviates from the 'Green Line' into occupied 
territory, is contrary to IHL."  One advocate read the entire 
release into the record, and several echoed one advocate's 
description of the ICRC as "the institutional guardian of the 
Geneva Conventions." 
Other advocates referred to violations of human rights 
instruments in addition to IHL. 
 
-- Military necessity and proportionality: Several advocates 
argued that Israel could not rely on the concept of "military 
necessity" or self-defense in a general sense to justify the 
fence.  Egyptian IHL expert, Professor Georges Abi-Saab, made 
a sustained argument that military necessity must be 
considered only in the context of specific provisions of IHL, 
and that in no such provisions could a justification for the 
fence be found.  Many argued that the protection of 
settlements was an "unacceptable" or "impermissible" 
justification for self-defense or military necessity. 
Similarly, several advocates alluded to the effects of the 
fence on Palestinians as being disproportionate to the 
self-defense or law-and-order rationales that Israeli might 
be expected to employ to justify its barrier. 
 
-- Consequences of an opinion: The basic argument of 
delegations was that, if the Court finds the fence to be 
illegal, Israel must cease construction, tear it down and 
compensate Palestinians for damages.  Some advocates argued 
that, since an opinion would be rendered to the UNGA 
directly, the UNGA or the Security Council would be 
responsible for determining the steps Israel and other states 
should take.  Several also argued that all states would have 
an obligation to prosecute or extradite those persons found 
on their territory who are allegedly responsible for "grave 
breaches" of IHL. 
 
5. (SBU) The absence of Israel, the USG and other governments 
which participated in the written phase of the proceeding was 
only occasionally mentioned.  Israel's absence and its 
failure to argue the merits of the fence, in the phrase of 
one advocate, "estopped" it from arguing that the Court would 
have incomplete facts before it to render an opinion.  Few 
remarked upon the USG's role in the peace process or absence 
from the proceedings.  An advocate for Palestine argued that 
other members of the Quartet did not oppose an opinion, and 
he added that "we even doubt whether" the USG statement can 
be characterized as opposing an opinion, considering instead 
a "caution" that any opinion not tread too heavily on general 
final status issues.  A few advocates, in asserting the lack 
of "effective" action by the Security Council, referred 
obviously to the use or threatened use of the veto by "one 
Member". 
 
6. (SBU) The close of the oral phase means that the Court now 
retires to deliberations.  The Court treated the UNGA request 
as urgent, and it is expected that the Court will endeavor to 
render its opinion on an urgent basis as well.  Whenever the 
opinion is rendered, it is likely that the Court will 
announce a public reading of the opinion approximately one 
week before such an event. 
 
7. (C) Comment: All in all, the proceedings surprised many 
observers.  They were typical of Court proceedings and thus, 
to some, rather boring -- the courtroom's thinning over the 
course of the proceedings may reflect such a view.  The 
repetitiveness of the arguments, suggesting a lack of 
coordination among delegations, may have diminished their 
impact somewhat. The proceedings were certainly not the 
"circus" many expected.  The Israeli observers shared this 
perception but expressed to embassy legal officer their view 
that the proof of seriousness will be in the opinion, and the 
focus of their anxieties is now on the rendering of an 
opinion.  The main concern of several governments -- that the 
Court not make pronouncements that would make final status 
negotiations more difficult -- may not have been alleviated 
by the proceedings, since many of the advocates invited the 
Court to make assessments of the legal nature of the Green 
Line and the West Bank and East Jerusalem.  Few observers are 
confident that the Court will decline to accept such 
invitations.  End comment. 
SOBEL