PRESENTATION BY THE REPUBLIC OF CUBA TO THE INTERNATIONAL COURT OF JUSTICE REGARDING THE REQUEST OF A CONSULTATIVE OPINION ON THE LEGAL CONSEQUENCES OF THE CONSTRUCTION BY ISRAEL OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORIES

Distinguished President, Honorable Judges:

The Republic of Cuba presented, on 30 January 2004, its written arguments on the fundamental legal question placed by the General Assembly of the United Nations before this august Court in compliance with its resolution ES-10/14, of 8 December 2003, for the emission of a consultative opinion.  Likewise, a Cuban delegation appears before this solemn audience as an expression of its genuine recognition of the need for international peace and security, multilateralism and the rule of law in international relations and as an expression of its historic and unconditional solidarity with the peoples subjected to colonialism and foreign domination, in particular with the Palestinian people, which continue to be denied its inalienable right to self-determination. 

It is an honor to present the oral explanation of the facts and the legal analysis carried out by Cuba arising from the construction of the wall 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, and considering the norms and principles of International Law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions. 

Honorable Judges:

The presentation by the Cuban delegation on this issue is structured as follows:

Part One, as an Introduction, examines three essential elements:

1. The jurisdiction of the International Court of Justice to emit a consultative opinion on the legal question presented by the U.N. General Assembly in compliance with Resolution ES-10/14, of 8  December 2003. 

2. The importance of the emission of a consultative opinion on the legal question of reference. 

3. The position of the Republic of Cuba on the most significant facts related to the construction of the wall by Israel.

Part two of the presentation describes the fundamental legal considerations and consequences derived from the construction of the wall,  by examining the following elements:

1. The construction of the wall by Israel, violates fundamental principles and  norms enshrined in the Charter of the United Nations and  International Law (jus cogens norms). 

2. The construction of the wall violates resolutions adopted by the U.N. General Assembly and Security Council. 

3. The construction of the wall violates principles and norms of International Humanitarian Law, particularly the Fourth Geneva Convention of 12 August  1949, relative to the Protection of Civilian Persons in Time of War. 

In the analysis of this last element, the presentation by the Cuban delegation will especially make reference to the following aspects:

A) The applicability of the Fourth Geneva Convention of 12 August 1949 to the occupied Palestinian territory, including in and around East Jerusalem, and the violations by Israel, the occupying Power, of the said Convention of 12 of August of 1949. 

B) The disproportionate and excessive use of the concept of the right to legitimate defense by the occupying Power and the disregard by Israel of the principles of proportionality and distinction derived from the construction of the wall.

Likewise, the presentation by the Republic of Cuba contains a Part Three, which includes its Final Considerations. 

PART I

Honorable Judges:

Regarding the jurisdiction of the International Court of Justice for the emission of a consultative opinion on the legal question presented by the U.N. General Assembly, the Republic of Cuba considers that this august body is fully competent to emit the consultative opinion requested. 

Article 96 of the United Nations Charter confers the General Assembly and the Security Council, the unconditional --and I must underline unconditional-- right to request consultative opinions to the International Court of Justice on any legal question. 

Article 65, paragraph 1, of the Statute of the International Court of Justice establishes that the Court will emit consultative opinions regarding any legal question at the request by any organ authorized to do so by the Charter.

In addition, the General Assembly, by its resolution ES-10/13, of 21 October 2003, established that the construction of the wall is an issue that has clear implications for International Law.  Said resolution, in its paragraph 1, "Demands that Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of International Law".

The General Assembly also clearly established the applicable legal framework for the interpretation and application of the pertinent legal norms in the emission of the consultative opinion on the legal question presented by Resolution ES-10/14. 

In spite of the so-called "considerations", or "political elements", involved in the negotiated solution of the Israeli-Palestinian conflict, and the request by several States that the Court make discretional use of Article 65, paragraph 1 of its Statutes, the Republic of Cuba considers that the Court should not abstain from emitting a consultative opinion on this important question. In Cuba's view, any debate on the optional nature of Article 65 paragraph 1 of the Statute of the Court is eminently theoretical in nature and can only be carried-out in the light of the other Articles of the Statute and of the United Nations Charter. 

Likewise, although on occasions States have objected the jurisdiction of the Court based on the political nature of questions that have been placed before it, this has not prevented the Court from emitting consultative opinions on said questions, circumscribing itself to the legal consequences deriving from them, and, thus, adhering to its competence according to the internationally accepted instruments that govern its functioning.

It is Cuba's contention that the emission of a consultative opinion regarding  the question presented by the General Assembly is based not only on Article 96 of the Charter, but also on Article 14, which establishes that the General Assembly is competent to recommend measures for the peaceful solution of any situation, irrespective of origin, even a situation arising from a violation of the U.N. Charter. 

Mention has been made of the limitations imposed by Article 12 of the Charter to the fulfillment by the General Assembly of the mandate conferred upon it by Article 14. In Cuba's view those limitations are not applicable in the cases involving requests of consultative opinions to the Court. Article 96 of the Charter, giving this faculty to the General Assembly, is not qualified in any manner and, therefore, places no limitations whatsoever.

Furthermore, even if Article 12 were to be theoretically applicable, limitations imposed by it would not be an obstacle for the request of a consultative opinion by the General Assembly. The fact is that the issue at hand was dealt with by the General Assembly by virtue of the United for Peace resolution resulting from a veto imposed by a Permanent Member of the Security Council to an enabling resolution. Hence, this should be interpreted in the sense that, for all practical purposes, the Security Council is not considering the draft resolution presented to it and the item involved, even if the issue were still on the Council's agenda.    

In addition, Cuba considers that the emission of a consultative opinion on the legal question of reference is of significance in the present international context and for the negotiated solution of the Israeli-Palestinian conflict itself and for the most recent efforts carried-out in that direction.

A consultative opinion on the question posed should constitute an essential tool in the hands of the United Nations in the fulfillment of its functions, particularly for the General Assembly, according to  Article 14 of the Charter, already mentioned.  Likewise, it has also the role of contributing to clarify to the international community as a whole the terrible socio-humanitarian consequences for the Palestinian people derived from the construction of the wall and, particularly, for the exercise of its right to self-determination and for the establishment of a sovereign and independent Palestinian State. 

The emission of a consultative opinion on this question should also be a dissuasive element for the occupying Power geared at having it stop and revert the construction of the wall in the occupied Palestinian territory and it should, at least, be a strong call on the occupying  Power to comply with the wishes of the U.N. General Assembly, as expressed in resolution ES-10/13, of 21 October 2003. 

By the same token, the emission of a consultative opinion should also have the function of avoiding that, in the future, the occupying Power intends to obtain international recognition of the de facto  situation created in the occupied Palestinian territory, including in and around East Jerusalem, with the construction of a wall that alters the Armistice Line of 1949. 

Honorable Judges:

With regard to the Republic of Cuba's position on the most salient facts derived from the construction of the wall by Israel, my delegation wishes to reiterate that the situation in the occupied Palestinian territory has been always a source of deep concern for my country.  For decades, Israel, the occupying Power, has been responsible of continuous and flagrant violations of human rights, of International Humanitarian Law and of International Law in said territory and has ignored the resolutions of the General Assembly and the Security Council on the Middle East. 

The Republic of Cuba accepts and upholds as fundamental reference for its presentation the background and facts described in the Report of the U.N. Secretary General (A/ES-10/248) presented by virtue of resolution ES-10/13 of the General Assembly. 

At present, according to the available public information, the situation is even more critical. The construction of the wall supposes in the short-term a humanitarian catastrophe that could be conducive to the extermination and genocide of the Palestinian population, while, at the same time, conditioning, from the physical point of view, the coexistence of two sovereign and independent States in the region, Israel and Palestine. 

Through this presentation, The Government of the Republic of Cuba reiterates its condemnation, inter alia, to the acts of annexation, to the excessive use of force without establishing a distinction between civilians and combatants, to the creation of a humanitarian crisis caused by the limitations imposed on the circulation of goods and persons, to the inhuman treatment of children, and to the generalized destruction of goods, all of which are a direct consequence of the territorial expansion of the occupying Power through the construction of the wall, and all of which have clear legal consequences. 

This situation must cease.  Israel, the occupying Power, has the obligation to stop and to revert the construction of the wall, while the international community, on the other hand, has also the obligation of not recognizing the control by the occupying Power of the Palestinian territory delimited by the wall. 

PART II

Honorable judges:

On the considerations and fundamental legal consequences derived from the construction of the wall by Israel, the occupying Power, in the occupied Palestinian territory, including in and around East Jerusalem, this presentation will only examine the most serious legal consequences that, in the view of the Republic of Cuba, must inevitably be considered in the context of the new de facto situation intended with the construction of the wall.  In our respectful opinion, the analysis to be carried-out by the distinguished judges of the International Court of Justice on this question, should take into account the following elements:

The construction of the wall violates principles and norms of International Law enshrined in the Charter of the United Nations and International Law. 

It is a violation of the prohibition of the threat and use of force. In conformity with Article 2 paragraph 4 of the Charter, the Members of the United Nations shall abstain in international relations to resort to the threat or use of force against the territorial integrity or the political independence of any State, or in any another form incompatible with the Purposes of the United Nations. 

If the layout of the wall foreseen by the authorities of the occupying Power is carried-out, it would deviate from the Armistice Line of  1949 (Green Line) up to 22 kilometers in several places, annexating important zones of the West Bank and in and around East Jerusalem. 

The occupying Power, with this act, would de facto establish a new border by means of unilateral imposition and the use of the force, by means of a separation wall between the Palestinian territory occupied in the war of aggression carried out by Israel in 1967, and its own State.  By virtue of International Law, an aggressor State cannot acquire a territory by means of unilateral annexation. 

According to International Law the prohibition of acquiring territories by force applies independently of any other consideration. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (resolution 2625 (XXV) of 24 October 1970), establishes that "the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.  No territorial acquisition resulting from the threat or use of force shall be recognized as legal". 

This non-recognition has been confirmed in a number of resolutions and international agreements.  Resolution 242 (1967) of the Security Council and the Oslo Agreements, are paradigmatic instruments accepted by the overwhelming majority of the international community.  The Oslo Agreements, for example,  establish that "the status of the West Bank and the Gaza Strip will not be changed pending the outcome of the permanent status negotiations".

The construction of the wall in the occupied Palestinian territory also qualifies as an illicit act of annexation in accordance with the provisions of resolutions 478 (1980) and 497 (1981) of the Security Council, which declare that the acts of Israel geared at the annexation of East Jerusalem and the Golan are null and void, and should not be recognized by States.   

The construction of the wall also ignores the principle of the equality of rights and self-determination of peoples. The right to self-determination is founded on Article 1 paragraph 2 and on Article 55 of the United Nations Charter. It was sanctioned also in  Article 1 of the Covenants on Civil and Political Rights and on Cultural, Social, and Economic Rights. 

Likewise, the U.N. General Assembly has ratified this principle in numerous resolutions.  Among the most noteworthy, it is found in resolution 1514 (XV), on the Declaration on the concession of  independence to the colonial countries and peoples, and in aforementioned resolution 2625(XXV). 

The right to self-determination is closely linked with the concept of territorial sovereignty.  A people can only exercise the right to self-determination within a territory.  The amputation of the Palestinian territory by means of the construction of a wall is a serious violation of the inalienable right to self-determination of the Palestinian people, since it considerably reduces the size of the already small self-determination unit within which such right should be exercised.

The right to self-determination of the Palestinian people cannot be alienated and it should be realized on the bases of territorial integrity within the borders of an independent Palestinian State.  This right of the Palestinian people has been confirmed by the U.N. General Assembly in numerous resolutions, and also recognized in the different phases of the peace process in the Middle East. 

The construction of the wall goes against the principle of peaceful solution of disputes. Article 2 Paragraph 3 of the United Nations Charter establishes that States should resolve their disputes by peaceful means.  Thus, any delimitation of borders should be negotiated between the two parties concerned on the bases of equality and equity for both clearly derive from this principle. The Parties should be placed on equal terms and each one of them should respect the rights the other in accordance with International Law.  The unilateral construction of the wall by Israel, the occupying Power, in the occupied Palestinian territory, including in and around East Jerusalem, is in no way conducive to a climate propitious to the peaceful and negotiated solution the Israeli-Palestinian conflict on equal terms. 

Honorable Judges:

It is crystal clear that the construction of the wall goes against the provisions contained in a number of resolutions of the General Assembly and the Security Council. 

The consideration of those resolutions also demonstrates that the systematic refusal by Israel to comply with the provisions contained therein regarding the acts committed in the occupied Palestinian territory, entails legal consequences for the occupying Power. 

In addition, the non-compliance by the occupying Power of United Nations resolutions is in conflict with the principle of good faith, one of the fundamental principles of International Law. 

The construction of the wall in the occupied Palestinian territory, including in and around East  Jerusalem, is also in violation of resolutions adopted by United Nations bodies in the context of the  Israeli settlements in the occupied Palestinian territory. 

Furthermore, the construction of the wall by the occupying Power violates principles and norms of International Humanitarian Law. 

First and foremost, Cuba sustains that the Geneva Convention of 12 August 1949 regarding the protection of civilian persons in times of war, the Fourth Geneva Convention, is fully applicable to the occupied Palestinian territory, including in and around  East Jerusalem. Reference should be made to the violations by Israel, the occupying Power, of said Convention. 

Though Israel, the occupying Power, has contended that the Fourth Geneva Convention is not applicable to the occupied Palestinian territory as it is "not a territory of a High Contracting Party as required by the Convention", the applicability of this Instrument to the occupied Palestinian territory enjoys extensive international recognition. The written presentation delivered by the Republic of Cuba on  30 January 2004 to this Court, contains legal and factual elements confirming this assertion.  At the same time, Israel, as occupying Power, is also legally bound by other consuetudinary norms relating to occupation, according to the stipulations of the Rules annexed to the Hague Convention on laws and costumes of land wars of 18 October of 1907. 

Not to accept the applicability of the Fourth Geneva Convention to the occupied Palestinian territory, including East Jerusalem, would be tantamount to placing the Palestinian population residing in that territory in a situation of defenselessness against the actions of the occupying Power.  Therefore, those persons should be considered as "protected persons", according to the definition of this condition in article 4 of said Convention. 

In the view of the Republic of Cuba, as a result of the construction of the wall and of the severe humanitarian and socioeconomic conditions that this has entailed and will continue to entail  for the population of the occupied Palestinian territory, the occupying Power incurs in a large number of serious violations of the Fourth Geneva Convention of 1949.

It violates the obligation emanating from Article 1, common to the four Geneva Conventions, according to which the "High Contracting Parties undertake to respect and to ensure respect of said Convention in all circumstances". 

It must be recalled that, because of their special nature, the norms of International Humanitarian Law establish obligations applicable to the international community as a whole.  Therefore, every member of the international community, is entitled to demand that said norms be respected. 

The occupying Power is up to now preventing 22 Palestinian locations from access to schools by impeding the free circulation of Palestinians in both sides of the wall, with which it is violating the provisions of Article 50, paragraph 1, according to which "the occupying Power shall, (…) facilitate the proper working of all institutions devoted to the care and education of children".

On the other hand, it is up to now preventing 30 Palestinian locations from access to health services and  8 from access to the primary sources of water provision by impeding the free circulation of Palestinians on both sides of the wall. With these actions, the occupying Power is violating the provisions of Article 56, according to which, inter alia, "(…) the occupying Power has the duty of ensuring and maintaining, (…) the medical and hospital establishments and services, public health and hygiene in the occupied territory…".

With the destruction of dwellings, stores, cultivated lands and other goods belonging to the Palestinian population for the construction of the wall, the occupying Power is violating Article 53, according to which "any destruction by the occupying Power of real state or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations." In Cuba's view, the exception foreseen in this Article is not applicable to this case.

As a result of the construction of the wall and of the establishment of arbitrary restrictions to the movement of Palestinian persons and goods from one side of the wall to the other, access by the Palestinian population to their lands, jobs, markets and other sources of subsistence has been severely limited, with which the Palestinian economy has been severely affected and its population  subjected to unsustainable conditions.  This situation clearly demonstrates that the occupying Power has not fulfilled its obligation to provide these persons with the opportunity to find paid employment, according to provisions included in paragraph 1, Article 39. 

Likewise, the occupying Power has not fulfilled the provisions of paragraph 2 of said Article 39, according to which "where a Party to the conflict applies to a protected person methods of control which result in his being unable to support himself, and especially if such a person is prevented for reasons of security from finding paid employment on reasonable conditions, the said Party shall ensure his support and that of his dependents".    

In this context, the occupying Power has not fulfilled the provisions of paragraph 1, Article 55 of the Fourth Geneva Convention, according to which "(…) the occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate".

Keeping in mind the previously mentioned violations of the rights of the "protected population", in this case the Palestinian population residing in the occupied Palestinian territory, the occupying Power is also violating article 47 of the Fourth Geneva Convention of 1949, according to which "protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention (…)"

All the violations of the provisions of the Fourth Geneva Convention above described, represent, furthermore, a humiliation to the Palestinian people by virtue of Article 27 of said Instrument, according to which "protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof (…)" 

In all evidence, the construction of the wall, with its concrete structure, its razor wire, its towers of observation and its electronic monitoring means, creates a population of prisoners. 

In addition to the above, the disproportionate and excessive use of the concept of the right to legitimate defense by the occupying Power, and the violation of the principles of proportionality and distinction derived from the construction of the wall should be also considered.

The occupying Power intends to justify the construction of a wall in the occupied Palestinian territory as being a security measure by virtue of the exercise by States of their right to legitimate defense.  In accordance with the United Nations Charter and International Law, States have the right to exercise said right individually or collectively in the case of an armed attack for the protection of its legitimate security interests, and in cases of strict military necessity.  Nevertheless, those actions should be compliant with international human rights norms and International Humanitarian Law. 

The action adopted by Israel, the occupying Power, of building a wall in the occupied Palestinian territory is not justified in any way whatsoever by military necessities. 

It violates the principle of proportionality, as it is not proportionate with legitimate security interests, moves away from measures of that character and acquires the nature of punishment, humiliation and conquest. 

Though it is accepted that combatants participating in armed conflict be faced by situations of mortal danger, International Humanitarian Law tries to limit the damages to be suffered by civilians, by requiring that all parties in the conflict respect the principle of distinction.  This principle, enunciated in Article 48 of Additional Protocol I to the Geneva Conventions, establishes that "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives".

In addition, Article 51 Paragraph 2 clearly states that "the acts or threats of violence whose main purpose is to terrify the civilian population are forbidden" . 

PART III

Honorable Judges:

Finally, it is an honor for my delegation to present to the consideration of this high judicial instance the conclusions derived from the analysis carried-out by the Republic of Cuba on the legal consequences of the construction of the wall by Israel, the occupying Power, in the occupied Palestinian territory, including East Jerusalem:

1.- The Government of the Republic of Cuba considers without  any shadow of doubt whatsoever, that the International Court of Justice is competent to emit a consultative opinion on the legal question presented by the U.N. General Assembly through its Resolution ES-10/14, of 8 December 2003. Articles 14 and 96 of the United Nations Charter and  Article 65, paragraph 1 of the Statute of the Court uphold said competence.  Is also our firm view that the emission of a consultative opinion on this important issue is pertinent and timely. 

2.- The Government of the Republic of Cuba also considers that the emission of a consultative opinion on this important issue will not constitute an obstacle to the peace process but, on the contrary, would be an important tool in the hands of the U.N. General Assembly and the United Nations as a whole for the fulfillment of its functions.  Likewise, it can contribute to clarify to the international community the terrible socio-humanitarian consequences for the Palestinian people derived from the construction of the wall, particularly for the exercise of its inalienable right to self-determination and the establishment of a sovereign and independent Palestinian State. 

3.- The emission of a consultative opinion on this question should also encourage the occupying Power to comply with the wishes of the international community  and should also play a decisive role in preventing any future intention of the occupying Power to obtain  international recognition of the de facto situation created in the occupied Palestinian territory as a result of the construction of the wall. 

4.- The Government of the Republic of Cuba cannot accept that the following elements may be considered an answer proportionate to the perception of security of the occupying Power: the excessive use of  force, the lack of distinction between civilians and combatants, the creation of a humanitarian crisis as a consequence of the limitations imposed to the circulation of goods and persons, the death and the inhuman treatment of children, the generalized destruction of goods and, ultimately, the territorial expansion by means of the construction of the wall.

5.- Israel, the occupying Power, persists in serious violations of the provisions of the Fourth Geneva Convention of 1949.  It still refuses to accept the de jure applicability and even the application of the Convention to the occupied Palestinian territory, including Jerusalem, thus demonstrating its refusal to respect the wish of the international community, that for more than 30 years has confirmed the applicability of this Convention to the occupied Palestinian territory, including in and around  East Jerusalem. 

6.- Israel, as a State party to the Fourth Geneva Convention and, at the same time, as occupying Power, should comply with the obligation emanating from Article 1, common to the four Geneva Conventions, according to which the High Contracting Parties undertake to respect and to ensure respect of said Convention in all circumstances.

7.- The extreme humanitarian crisis imposed by the occupying Power to the Palestinian population since the construction of the wall, as described in the Report of the Secretary General and in other public sources, may be classified as a crime of extermination, as it constitutes the intentional infliction of conditions of life, calculated to bring about the destruction of part of a population, in this case the Palestinian population. 

8.- The Government of the Republic of Cuba respectfully hopes that the International Court of Justice, while emitting the consultative opinion requested by U.N. General Assembly in its resolution ES-10/14  of 8 December 2003, recognizes that the construction of the wall by Israel is illegal and in violation of the norms and principles of International Law, including the Fourth Geneva Convention of 1949 and the relevant resolutions of the Security Council and the General Assembly.

9.- The Government of the Republic of Cuba equally expects that the International Court of Justice recognize the international responsibility derived for the occupying Power by the illicit acts previously expressed.  Likewise, the Government of the Republic of Cuba considers that the stopping of the process of construction of the wall in the occupied Palestinian territory cannot be postponed, and respectfully requests the Court to demand that the wall be totally demolished and that the occupying Power unrestrictedly fulfill its obligations under International Law and International Humanitarian Law. 

10.- Cuba hopes that the International Court of Justice act in a decisive and  unanimous manner in favor of peace and justice.  The wall of separation continues to accentuate the illegal Israeli occupation, and perpetuates the system of "apartheid" established by Israel in the occupied Palestinian territory.  Furthermore, with these actions, Israel moves the possibility of reaching a negotiated, just and lasting solution to the  Palestinian-Israeli conflict further along into the future.

Honorable Judges, thank-you very much for your patience and attention.