Joakim von And <ncm_ab@hotmail.com> wrote:
> "Jesper" <spambuster@users.toughguy.net> skrev i en meddelelse
> news:1h16ta0.cr5ycq140gam8N%spambuster@users.toughguy.net...
> > Joakim von And <ncm_ab@hotmail.com> wrote:
> >
> > > "Jesper" <spambuster@users.toughguy.net> skrev i en meddelelse
> > > news:1h15512.1qw2d6c1d0ub3wN%spambuster@users.toughguy.net...
> > >
> > > > > Korrektion. Her er der tale om omstridte og ikke besatte områder.
> > > >
> > > > Omstridte? Kun for jøderne. Alle andre betragter det som besatte
> > > > områder, incl FN. Du kunne med fordel læse ICJ dommen ifm Israels
> > > > murbyggeri.
> > >
> > > Er du klar over hvilke lande repræsenterede den pågældende dommerstand
> og
> > > hvilke lande som fik foretræde for "domstolen" til at give deres besyv
> med -
> > > desuagtet at de ikke havde en hujende fis at gøre der?
> > >
> > > Næ du, hele sagsforløbet, voteringen og kendelsen var en stor fed farce.
> ICJ
> > > udstillede sig selv som alt andet end et troværdigt organ med den
> > > himmelråbende kendelse, som var 100 pct. politisk bestemt og som ikke
> havde
> > > skyggen af juridisk indhold i sig.
> > >
> > > Og tro mig endelig ikke på mit ord. Prøv blot at lægge mærke til hvordan
> > > kritikken mod sikkerhedshegnet siden hen er forstummet og stil dig selv
> > > spørgsmålet hvorfor mon?
> >
> > Ved du hvad Joakim?
> > Jeg er revnende ligeglad hvilke lande de kommer fra, fordi de alle er
> > uvildige dommere som træffer uvildige beslutninger. Dommen er meget
> > grundig og omfattende, den er uangribelig.
>
> Vorherre bevares. Flere af dommerne kommer fra lande som er svoren
> modstander af Staten Israel. Lande som gang på gang overtræder selv de mest
> elementære og grundlæggende retsprincipper. Selve spørgsmålet om at inddrage
> sikkerhedshegnet for ICJ blev stemt ned af FN's Sikkerhedsråd og 30 lande,
> heriblandt USA, Rusland og EU, udsendte skriftlige erklæringer om at
> sikkerhedshegnet ikke var et anliggende for ICJ.
>
> Og uvildig kan dommen, som alene har vejledende karakter og derfor ikke er
> juridisk bindende, aldrig være. ICJ tillod 56 lande fra Organisationen af
> Islamisk Konference, herunder 22 lande fra den arabiske liga, at vidne mod
> Israel.
>
> Kort sagt ICJ skadede sit omdømme ved at lade sig inddrage i en
> sag, der udelukkende havde til formål, at holde den efterhånden årelange
> arabiske propaganda i at delegitimere og isolere Israel fra verdenssamfundet
> i ave.
Du kan ikke påvise ud fra ICJs domme, at dommerne ikke er uvildige, det
er bare noget du går ud fra, baseret på dommernes nationalitet, du er
for useriøs som debattør.
>
> > ICJ er en respekteret FN institution, der også har truffet afgørelser
> > der berørte Danmark, f.eks. da norsk territorrialkrav på Østgrønland
> > blev afvist.
>
> Ja, ICJ kan løse en tvist ml. to selvstændige nationer som indvilliger i at
> få bragt en sag for en international domstol. I sagen om sikkerhedshegnet
> havde ICJ dog ingen juridisk bemyndigelse.
Jeg gør opmærksom på at der er en udtrykkelig tilladelse i FN chartret
til at Generalforsamlingen kan indbringe sager for ICJ
>
> >
> > Kom med en konkret kritik af dommen baseret på den tekst der rent
> > faktisk står, ellers lukker du jo bare varm luft ud!
>
> Jeg synes ellers at jeg er meget konkret. Men dommens præmisser har altså
> ingen praktisk betydning på landjorden og er derfor irrelevant at diskutere.
>
> Ellers kan jeg anbefale dig at læse ICJs egen artikel 36, som fastslår, at
> en sag kun kan bringes for domstolen, hvis alle parter samtykker. Det var
> ikke tilfældet med Israel.
>
> Joakim
I dette tilfælde tjener ICJ som rådgivere for Generalforsamlingen, det
er der ingen lov der forbyder:
International Court of Justice
Press Release 2004/28
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9 July 2004
Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory
Advisory Opinion
The Court finds that the construction by Israel of a wall in the
Occupied Palestinian
Territory and its associated régime are contrary to international law;
it states
the legal consequences arising from that illegality
THE HAGUE, 9 July 2004. The International Court of Justice
(ICJ), principal judicial organ of the United Nations, has today
rendered its Advisory Opinion in the case concerning the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (request for advisory opinion).
In its Opinion, the Court finds unanimously that it has
jurisdiction to give the advisory opinion requested by the United
Nations General Assembly and decides by fourteen votes to one to comply
with that request.
The Court responds to the question as follows:
? "A. By fourteen votes to one,
The construction of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, and its associated régime, are contrary to
international law";
? "B. By fourteen votes to one,
Israel is under an obligation to terminate its breaches of
international law; it is under an obligation to cease forthwith the
works of construction of the wall being built in the Occupied
Palestinian Territory, including in and around East Jerusalem, to
dismantle forthwith the structure therein situated, and to repeal or
render ineffective forthwith all legislative and regulatory acts
relating thereto, in accordance with paragraph 151 of this Opinion";
? "C. By fourteen votes to one,
Israel is under an obligation to make reparation for all
damage caused by the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem";
? "D. By thirteen votes to two,
All States are under an obligation not to recognize the
illegal situation resulting from the construction of the wall and not to
render aid or assistance in maintaining the situation created by such
construction; all States parties to the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12
August 1949 have in addition the obligation, while respecting the United
Nations Charter and international law, to ensure compliance by Israel
with international humanitarian law as embodied in that Convention";
? "E. By fourteen votes to one,
The United Nations, and especially the General Assembly and
the Security Council, should consider what further action is required to
bring to an end the illegal situation resulting from the construction of
the wall and the associated régime, taking due account of the present
Advisory Opinion."
Reasoning of the Court
The Advisory Opinion is divided into three parts:
jurisdiction and judicial propriety; legality of the construction by
Israel of a wall in the Occupied Palestinian Territory; legal
consequences of the breaches found.
Jurisdiction of the Court and judicial propriety
The Court states that when it is seised of a request for an
advisory opinion, it must first consider whether it has jurisdiction to
give that opinion. It finds that the General Assembly, which requested
the opinion by resolution ES?10/14 of 8 December 2003, is authorized to
do so by Article 96, paragraph 1, of the Charter.
The Court, as it has sometimes done in the past, then gives
certain indications as to the relationship between the question on which
the advisory opinion is requested and the activities of the General
Assembly. It finds that the General Assembly, in requesting an advisory
opinion from the Court, did not exceed its competence, as qualified by
Article 12, paragraph 1, of the Charter, which provides that, while the
Security Council is exercising its functions in respect of any dispute
or situation, the Assembly must not make any recommendation with regard
thereto unless the Security Council so requests.
The Court further refers to the fact that the General Assembly
adopted resolution ES?10/14 during its Tenth Emergency Special Session,
convened pursuant to resolution 377A (V), which provides that if the
Security Council fails to exercise its primary responsibility for the
maintenance of international peace and security, the General Assembly
may consider the matter immediately with a view to making
recommendations to Member States. The Court finds that the conditions
laid down by that resolution were met when the Tenth Emergency Special
Session was convened; that was in particular true when the General
Assembly decided to request an opinion, as the Security Council was at
that time unable to adopt a resolution concerning the construction of
the wall as a result of the negative vote of a permanent member.
The Court then rejects the argument that an opinion could not
be given in the present case on the ground that the question posed in
the request is not a legal one.
Having established its jurisdiction, the Court considers the
propriety of giving the requested opinion. It recalls that the lack of
consent by a State to its contentious jurisdiction has no bearing on its
jurisdiction to give an advisory opinion. It adds that the giving of an
opinion would not have the effect, in the present case, of circumventing
the principle of consent to judicial settlement, given that the question
on which the General Assembly requested an opinion is located in a much
broader frame of reference than that of the bilateral dispute between
Israel and Palestine, and that it is of direct concern to the United
Nations. Nor does the Court accept the contention that it should
decline to give the advisory opinion requested because its opinion could
impede a political, negotiated solution to the Israeli?Palestinian
conflict. It further finds it has before it sufficient information and
evidence to enable it to give its opinion, and emphasizes that it is for
the General Assembly to assess the usefulness of that opinion. The
Court concludes from the foregoing that there is no compelling reason
precluding it from giving the requested opinion.
Legality of the construction by Israel of a wall in the
Occupied Palestinian Territory
Before addressing the legal consequences of the construction
of the wall (the term which the General Assembly has chosen to use and
which is also used in the Opinion, since the other expressions sometimes
employed are no more accurate if understood in the physical sense), the
Court considers whether or not the construction of the wall is contrary
to international law.
The Court determines the rules and principles of international
law which are relevant to the question posed by the General Assembly.
The Court begins by citing, with reference to Article 2, paragraph 4, of
the United Nations Charter and to General Assembly resolution 2625
(XXV), the principles of the prohibition of the threat or use of force
and the illegality of any territorial acquisition by such means, as
reflected in customary international law. It further cites the
principle of self?determination of peoples, as enshrined in the Charter
and reaffirmed by resolution 2625 (XXV). As regards international
humanitarian law, the Court refers to the provisions of the Hague
Regulation of 1907, which have become part of customary law, as well as
the Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War of 1949, applicable in those Palestinian
territories which before the armed conflict of 1967 lay to the east of
the 1949 Armistice demarcation line (or "Green Line") and were occupied
by Israel during that conflict. The Court further notes that certain
human rights instruments (International Covenant on Civil and Political
Rights, International Covenant on Economic, Social and Cultural Rights
and the United Nations Convention on the Rights of the Child) are
applicable in the Occupied Palestinian Territory.
The Court ascertains whether the construction of the wall has
violated the above?mentioned rules and principles. It first observes
that the route of the wall as fixed by the Israeli Government includes
within the "Closed Area" (between the wall and the "Green Line") some 80
percent of the settlers living in the Occupied Palestinian Territory.
Recalling that the Security Council described Israel's policy of
establishing settlements in that territory as a "flagrant violation" of
the Fourth Geneva Convention, the Court finds that those settlements
have been established in breach of international law. It further
considers certain fears expressed to it that the route of the wall will
prejudge the future frontier between Israel and Palestine; it considers
that the construction of the wall and its associated régime "create a
'fait accompli' on the ground that could well become permanent, in which
case, . . . [the construction of the wall] would be tantamount to de
facto annexation". The Court notes that the route chosen for the wall
gives expression in loco to the illegal measures taken by Israel, and
deplored by the Security Council, with regard to Jerusalem and the
settlements, and that it entails further alterations to the demographic
composition of the Occupied Palestinian Territory. It finds that the
"construction [of the wall], along with measures taken previously, . . .
severely impedes the exercise by the Palestinian people of its right to
self?determination, and is therefore a breach of Israel's obligation to
respect that right".
The Court then considers the information furnished to it
regarding the impact of the construction of the wall on the daily life
of the inhabitants of the Occupied Palestinian Territory (destruction or
requisition of private property, restrictions on freedom of movement,
confiscation of agricultural land, cutting?off of access to primary
water sources, etc.). It finds that the construction of the wall and
its associated régime are contrary to the relevant provisions of the
Hague Regulations of 1907 and of the Fourth Geneva Convention; that
they impede the liberty of movement of the inhabitants of the territory
as guaranteed by the International Covenant on Civil and Political
Rights; and that they also impede the exercise by the persons concerned
of the right to work, to health, to education and to an adequate
standard of living as proclaimed in the International Covenant on
Economic, Social and Cultural Rights and in the Convention on the Rights
of the Child. Lastly, the Court finds that this construction and its
associated régime, coupled with the establishment of settlements, are
tending to alter the demographic composition of the Occupied Palestinian
Territory and thereby contravene the Fourth Geneva Convention and the
relevant Security Council resolutions.
The Court observes that certain humanitarian law and human
rights instruments include qualifying clauses or provisions for
derogation which may be invoked by States parties, inter alia where
military exigencies or the needs of national security or public order so
require. It states that it is not convinced that the specific course
Israel has chosen for the wall was necessary to attain its security
objectives and, holding that none of such clauses are applicable, finds
that the construction of the wall constitutes "breaches by Israel of
various of its obligations under the applicable international
humanitarian law and human rights instruments".
In conclusion, the Court considers that Israel cannot rely on
a right of self?defence or on a state of necessity in order to preclude
the wrongfulness of the construction of the wall. The Court accordingly
finds that the construction of the wall and its associated régime are
contrary to international law.
Legal consequences of the violations found
The Court draws a distinction between the legal consequences
of these violations for Israel and those for other States.
In regard to the former, the Court finds that Israel must
respect the right of the Palestinian people to self?determination and
its obligations under humanitarian law and human rights law. Israel
must also put an end to the violation of its international obligations
flowing from the construction of the wall in the Occupied Palestinian
Territory and must accordingly cease forthwith the works of construction
of the wall, dismantle forthwith those parts of that structure situated
within the Occupied Palestinian Territory and forthwith repeal or render
ineffective all legislative and regulatory acts adopted with a view to
construction of the wall and establishment of its associated régime,
except in so far as such acts may continue to be relevant for compliance
by Israel with its obligations in regard to reparation. Israel must
further make reparation for all damage suffered by all natural or legal
persons affected by the wall's construction.
As regards the legal consequences for other States, the Court
finds that all States are under an obligation not to recognize the
illegal situation resulting from the construction of the wall and not to
render aid or assistance in maintaining the situation created by such
construction. The Court further finds that it is for all States, while
respecting the United Nations Charter and international law, to see to
it that any impediment, resulting from the construction of the wall, in
the exercise by the Palestinian people of its right to
self?determination is brought to an end. In addition, all States
parties to the Fourth Geneva Convention are under an obligation, while
respecting the Charter and international law, to ensure compliance by
Israel with international humanitarian law as embodied in that
Convention.
Finally, the Court is of the view that the United Nations, and
especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and its associated
régime, taking due account of the present Advisory Opinion.
The Court concludes by stating that the construction of the
wall must be placed in a more general context. In this regard, the
Court notes that Israel and Palestine are "under an obligation
scrupulously to observe the rules of international humanitarian law".
In the Court's view, the tragic situation in the region can be brought
to an end only through implementation in good faith of all relevant
Security Council resolutions. The Court further draws the attention of
the General Assembly to the "need for . . . efforts to be encouraged
with a view to achieving as soon as possible, on the basis of
international law, a negotiated solution to the outstanding problems and
the establishment of a Palestinian State, existing side by side with
Israel and its other neighbours, with peace and security for all in the
region".
Composition of the Court
The Court was composed as follows: Judge Shi, President;
Judge Ranjeva, Vice?President; Judges Guillaume, Koroma, Vereshchetin,
Higgins, Parra?Aranguren, Kooijmans, Rezek, Al?Khasawneh, Buergenthal,
Elaraby, Owada, Simma and Tomka; Registrar Couvreur.
Judges Koroma, Higgins, Kooijmans and Al?Khasawneh append
separate opinions to the Advisory Opinion. Judge Buergenthal appends a
declaration. Judges Elaraby and Owada append separate opinions.
___________
A summary of the Advisory Opinion is published in the document
entitled "Summary No. 2004/2", to which summaries of the declaration and
separate opinions appended to the Advisory Opinion are attached. This
Press Communiqué, the summary of the Advisory Opinion and the latter's
full text can also be accessed on the Court's website by clicking on
"Docket" and "Decisions" (
www.icj-cij.org).
___________
Information Department:
Mr. Arthur Witteveen, First Secretary of the Court (tel.: +
31 70 302 23 36)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers
(tel.: + 31 70 302 23 37)
E?mail address: information@icj?cij.org
--
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Guess which has occurred. -- David Dixon
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