A Dangerous And Faulty Ruling Re Self-Defense

By Maurice Ostroff                                                       July 21, 2004

Part 1 

On the strange grounds that Palestinian terror does not constitute an armed attack by a state, the ICJ advisory denied Israel's right to self-defense. While this ruling was obviously directed against Israel, it carries dangerous implications for all countries, which will be denied the right of self-defense against terror attacks from armed groups which are not states.

But the ICJ conclusion is faulty. In Clause 139, the ICJ claims that Article 51 of the UN Charter recognizes the existence of a right of self-defense only in the case of armed attack by one State against another".  Strangely, the words "in the case of armed attack by one State against another" are nowhere to be found in article 51.

Effectiveness Of The Anti-Terrorist Barrier (ATB)

How does one measure the comparative injustices of preventing savage murder by terrorists of hundreds of uninvolved civilians, including infants, the elderly and infirm, Arabs and Jews alike, with the real and hopefully temporary inconvenience to Palestinians affected by construction of the ATB?

The advisory is again remiss in ignoring the effectiveness of the ATB. Between September 2000 and July 2003, West Bank terrorists carried out 73 atrocities within Israel, killing 293 people and badly wounding 1950. Between erection of the first segment in August 2003, and June 2004, the number of successful attacks originating in the West Bank dropped to three, all in the first half of 2003, during which 26 civilians were murdered and 76 wounded.  Because the portion of the ATB already erected forces terrorists to take more difficult routes, the number of attempted attacks foiled by security forces improved greatly. Dozens of attacks were prevented and several intending perpetrators were captured.

Israel's High Court Ruling on the ATB

The ICJ was sadly remiss in failing to consider the Israel High Court ruling. Well known for its impartiality, the Israel court ordered that everything must be done to minimize hardship to Palestinians. Even though the partially constructed barrier has reduced attacks, it nevertheless ordered the state to reroute 30 kilometers of a 40-kilometer stretch. Contrary to fears expressed in the ICJ advisory that Israel is creating permanent facts on the ground, in many parts the barrier will be torn down and compensation paid to local residents for damage to their lands. "A democracy," said Chief Justice Barak, "must sometimes fight with one hand tied behind her back".

The Israel government announced complete acceptance of the high court ruling and construction has been halted while a less intrusive route is planned, even at the cost of some security.

Propriety

In the Arab sponsored UN vote, referring the barrier to the ICJ, 8 countries voted against and 74 abstained. The absence from the hearing of Israel, heightens doubts about the legitimacy of the ICJ's agreement to adjudicate as pointed out by UK Judge Higgins. She stressed that the Court did not deal with the important aspect that lack of consent of an interested State (Israel), might render an advisory opinion incompatible with the Court's judicial character.

The Context

Inexcusably, the ICJ ignored the reference in GA resolution ES 10/14 to note the agreements between Israel and the PLO. Had it done so, it would have found that Israel's construction of the ATB complies fully with its duty under Article XV of the of the 1995 (Oslo II) Interim Agreement which specifically provides that "Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other... " With the PA's flagrant failure to comply with its obligations under this clause, the ATB should be welcomed as the only non violent remaining means available to comply with the obligations of both parties.

The ICJ would have noted too, the PA's tolerance of, and even cooperation with, Hamas, Islamic Jihad and PFLP in gross violation of Article XIV which unambiguously forbids any armed forces in the West Bank and the Gaza Strip other than the Israeli army and the Palestinian Police Force and strictly forbids the possession or manufacture by any other organization of weapons, explosives or any related equipment.

Construction of the ASB becomes even more understandable in view of the PA's violation of Article XXII which requires the parties to abstain from incitement and ensure that their respective educational systems contribute peace.

It would not be unreasonable to have expected the ICJ to welcome, not only this non-violent ATB, but the fact that by reducing the incidence of terror attacks, the ATB will hopefully minimize, if not avoid the need for violent incursions into PA controlled territory.

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Part 2

In part 1, we discussed some serious weaknesses and errors in the ICJ advisory. We now examine the faulty manner in which the ICJ interpreted the historical context surrounding Israel's struggle for survival since birth and its faulty assumption about the legality of Israel's presence in the West Bank and Gaza.

 History

Referring to the 1947 UN partition resolution, clause 71 states, "Israel proclaimed its independence on the strength of the General Assembly resolution; armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented". 

 "Armed conflict broke out." Indeed! The statement is equivalent to historians reporting blandly without any explanation "The Twin Towers were destroyed on 9/11". Not even the most extreme history revisionist denies that Israel accepted the 1947 UN partition resolution; the Arabs rejected it. Immediately Israel declared independence in 1948, the Arab League declared "Holy War", with the publicly announced intention of driving the Jews into the sea. Lebanon, Jordan, Syria, Egypt and Iraq invaded the newborn state, expecting to destroy it in a matter of weeks.  Arab League Secretary, General Azzam Pasha declared "This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades". The Mufti of Jerusalem, Haj Amin Al Husseini pronounced "I declare a holy war, my Moslem brothers! Murder the Jews! Murder them all!"

 In her separate opinion Judge Higgins wrote, "...I find the history as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory".

 Legalities

The ICJ advisory treats, as a given fact, that Israel's presence in the West Bank and Gaza is illegal. Surprisingly, this body of eminent judges did not consider it important to examine the legal arguments on which this conclusion was reached. In clause 74, the ICJ makes a very cursory reference to one of the most important and hotly debated SC resolutions. To really understand what 242 is about, who better to turn to than one of the authors of the resolution, the late Eugene Rostow. In an article "Are the settlements legal?" in The New Republic, (October 21, 1991), Rostow wrote:

 "Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved. When such a peace is made, Israel is required to withdraw its armed forces "from territories" it occupied during the Six-Day War--not from "the" territories nor from "all" the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

 Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called "secure and recognized" boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims."

 The indisputable facts are that prior to 1967, the West Bank and East Jerusalem were not possessed by the Palestinians but were ILLEGALLY occupied by Jordan. Gaza was similarly, ILLEGALLY occupied by Egypt, both countries having illegally invaded the territories in defiance of the 1947 UN Partition Plan. Jordan resolved to annex the West Bank and Jerusalem in 1950 but this attempt at annexation was rejected by the vast majority of the international community, including the Arab states. Only Great Britain and Pakistan recognized this attempt at annexation.

 It is relevant to quote former State Department Legal Advisor Stephen Schwebel, who at one time headed the ICJ. In 1970 he wrote: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. It is a matter of history that Israel only entered the West Bank in self-defense. It is also a matter of record that the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War".

 Contrary to the basic assumption on which the ICJ advisory is based, the unavoidable logical conclusion is that Israel's presence in the West Bank and Gaza may be justifiable or unjustifiable, wise or unwise, but it certainly is not illegal until such time as a just and lasting peace is achieved. The corollary is that the minor intrusions of the ATB into the West Bank are justifiable in terms of international law, subject to the conditions imposed by the Israel High Court ruling referred to earlier.