Reply: Online Edition

6. Terrorism

The International Court of Justice fails to identify Palestinian terrorism, the root cause of the construction of the security barrier, and what one may and may not do to combat it.

UN-sponsored International Conventions, Security Council Resolutions and Directives, including the Report of the Secretary-General prepared pursuant to General Assembly Resolution ES-10/13, are all ignored by the ICJ.1

The ICJ cites UN Document A/ES-10/248 – the report of the Secretary General on the security fence – as a key document and source of information for its opinion. Yet, the ICJ overlooks entirely the points in the Secretary-General’s Report2 that admits the causal relationship between terrorism and the security barrier. In Section C (Route of the Barrier) (4) of his report, the Secretary-General cites:

“… After a sharp rise in Palestinian terror attacks in the spring of 2002, the [Israeli] Cabinet approved Government Decision 64/B on 14 April 2002, which called for construction of 80 kilometers of the Barrier in the three areas of the West Bank.”

Not only does the report label the Palestinian actions as terror, but it also clearly establishes, in its own words, the cause for building a security barrier. The ICJ completely ignores this fact; at no point is it addressed in the ICJ’s opinion.

In December 1997, the United Nations adopted Resolution 52/164 – the International Convention for the Suppression of Terrorist Bombings3 – a contribution to international law that establishes rules of jurisdiction in the prosecution of terrorists.

The UN legislation clearly defines terrorism and ‘who is a terrorist,’ declaring, for the first time, that:

“… the States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed” [italics by author].

This text is clear: regarding any act of terrorism, the ends do not justify the means.

Article 2 of the Convention defines a terrorist as:

“Any person [who] unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility … with the intent to cause death or serious bodily injury … or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.”

It underscores in 2 a-c that this includes:

“… accomplices, organizers and directors and other persons who in any other way contribute to the commission of such acts.”

There is no escape clause in this piece of international law that exempts “struggles for self-determination” from anti-terrorism resolutions. In fact, the International Convention for the Suppression of Terrorist Bombings clarifies in Article 11 that:

“None of the offences set forth in article 2 shall be regarded … as a political offence or as an offence connected with a political offence or as an offence inspired by political motives.”

The ICJ skirts this issue, choosing to rule favorably on the “applicability of human rights instruments outside national territory … in the Occupied Palestinian Territory” – quoting time and again other conventions and covenants. These agreements include the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. All are used as evidence (without a single reference to particulars or law), to condemn Israel’s abrogation of humanitarian law in building the Barrier against “... numerous indiscriminate and deadly acts of violence,”4 but the ICJ doesn’t so much as mention the International Convention for the Suppression of Terrorist Bombing. In fact, the term ‘suicide bombers’ does not appear even once, nor is the “T” word used in the wording of the Opinion.5

If General Assembly Resolution 33146 and the International Convention for the Suppression of Terrorist Bombings do not make their denunciation of terrorism explicitly clear, resolutions by the Security Council – Resolution 12697 adopted in the wake of the first attack on the World Trade Center in 1999 and other resolutions adopted in the wake of the September 11 2001 terrorist attack on the United States by a non-State terrorist organization – do.

In Point 4 of Security Council Resolution 1269, passed in October 1999 (after the first attack on the World Trade Center), the Security Council calls upon every UN member and non-member:

“… to take, inter alia, in the context of such cooperation and coordination, appropriate steps to:

“cooperate with each other, particularly through bilateral and multilateral agreements and arrangements, to prevent and suppress terrorist acts, protect their nationals and other persons against terrorist attacks and bring to justice the perpetrators of such acts.”

In essence, the Security Council expects every Member State to carry out this and other steps enumerated in the resolution.

Resolutions 1368,8 13739 (September 2001) and Resolution 137710 (November 2001) leave no room to question Israel’s right to defend itself against systematic and sustained Palestinian terrorist attacks launched since September 2000 – an onslaught per capita, equivalent to 17 September 11th attacks.11

With regard to terrorism, Resolution 1368 clarifies and 1373 reconfirms in a broader form that the Security Council:

“Reaffirms the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in Resolution 1368 (2001),

“Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.”

The UN term “by all means” clearly includes a passive, non-lethal physical barrier to impede the movement of such perpetrators, in addition to more forceful responses.

Resolution 1377, passed two months later:

“Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century,

“Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed” [italics by author].

Terrorist attacks that blow up and destroy public buses, religious celebrations such as a Passover seder and bat mitzvah, young people at cafes and discos, families at supermarkets and restaurants, and that murder youth at boarding schools, school outings, and families in their homes and on the road, clearly fall within the confines of this definition.

The nature of Palestinian terrorism is public knowledge. Yet, the International Court of Justice claims in paragraphs 55-57:

“According to Israel, if the Court decided to give the requested opinion, it would be forced to speculate about essential facts and make assumptions about arguments of law. More specifically, Israel has argued that the Court could not rule on the legal consequences of the construction of the wall without enquiring, first, into the nature and scope of the security threat to which the wall is intended to respond and the effectiveness of that response … ”

Nevertheless, in paragraph 57 of the opinion, the ICJ claims it has ample information:

“… the Court has at its disposal the report of the Secretary-General,12 as well as a voluminous dossier submitted by him to the Court. … The Court notes in particular that Israel’s Written Statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters are in the public domain.”

After all has been said and done,13 how is it that nowhere in the opinion does the ICJ weigh Israel’s security threat or even mention terrorism as a factor in the case? The ICJ did not even have to depend on Israeli sources. There is, for instance, a well-documented 170-page Human Rights Watch (HRW) report on suicide bombings against Israelis since September 2000 – Erased in a Moment: Suicide Bombing Attacks Against Israel Civilians – available ‘in the public domain’ at the click of a computer mouse. The report, prepared by an international human rights monitoring organization, concluded: “The scale and systematic nature of these [E.H., terror] attacks in 2001 and 2002 meet the definition of a crime against humanity.”

Moreover, the Human Rights Watch report, which examines in a special section the justifications given by terrorists for their actions under the right to self-determination, places responsibility for terrorist acts directly at the Palestinian Authority’s door.

Security Council Resolution 1368, passed the day after the September 11th attack, clearly specified who was accountable for such a terrorist act and called for:

“… bring[ing] to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable” [italics by author].

Security Council Resolution 1456 – passed in January 2003 – further clarified:

“… any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned, especially when they indiscriminately target or injure civilians”14 [italics by author].

Again, the International Court of Justice sees no relevance in the definition of terrorism and culpability set forth in Resolution 1456, despite the fact that Israel has been the target of aggression with 80 percent of the Israelis killed being non-combatants, with women and girls accounting for 31 percent of the fatal casualties,15 including 51 American citizens and a score of foreign laborers.16

The ICJ quotes from a variety of international conventions devoted to wartime situations, including the Hague and Geneva Conventions. Is it reasonable that the ICJ is unaware of the Rome Statute in force since 2002 that is clearly posted on the UN International Law website?17

What does the Rome Statute say? In Section IV (“Legal Standards”) in the Human Rights Watch investigation of suicide bombings, the Rome Statute and the Draft Code Against the Peace and Security of Mankind drawn up by the International Law Commission and often quoted as a guide or yardstick in legal proceedings, are discussed at length.18 The HRW notes:

“The notion of ‘crimes against humanity’ refers to acts that, by their scale or nature, outrage the conscience of humankind. Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945. Since then, the concept has been incorporated into a number of international treaties, including the Rome Statute of the International Criminal Court (ICC). Although definitions of crimes against humanity differ slightly from treaty to treaty, all definitions provide that the deliberate, widespread, or systematic killing of civilians by an organization or government is a crime against humanity. Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict.”19

The most recent definition of crimes against humanity is contained in the Rome Statute of the ICC, which entered into force on July 1 2002.

“The statute, in Article 7, defines crimes against humanity as the ‘participation in and knowledge of a widespread or systematic attack against a civilian population,’ and ‘the multiple commission of [such] acts ... against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.’ The statute’s introduction defines ‘policy to commit such attack’ to mean that the state or organization actively promoted or encouraged such attacks against a civilian population. The elements of the ‘crime against humanity of murder’ require that (1) ‘the perpetrator killed one or more persons,’ (2) ‘[t]he conduct was committed as part of_a widespread or systematic attack directed against a civilian population,’ and (3) ‘[t]he perpetrator knew that the conduct was part of, or intended the conduct to be part of, a widespread or systematic attack against a civilian population.’”20

It is noteworthy that the Rome Statute addresses both the character of the act (deliberate “widespread or systematic” killing), and the nature of the perpetrator (a “State” or “organization”), and leaves no loopholes for non-State entities to escape culpability. Yet, the Rome Statute – an integral part of international law – is patently ignored by the International Court of Justice.21

The ICJ ignores relevant bilateral treaties, including the Oslo Accords.

In paragraph 77 of the ICJ opinion, ten years of Palestinian autonomy marked by broken promises to recognize Israel by abolishing anti-Israel clauses in the Palestinian National Covenant and to replace denunciation of terrorism with negotiation, is reduced by the ICJ to one sentence:

“… a number of agreements have been signed since 1993 between Israel and the Palestine Liberation Organization imposing various obligations on each party.”

The ICJ then takes liberties with the content of the Oslo Accords, claiming erroneously:

“Those agreements inter alia required Israel to transfer to Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil administration.”

In fact, this is a doctored interpretation: had the members of the ICJ read the Accords, the Bench would have found that Israel only recognized the PLO as the representative of the Palestinian people in the exchange of letters between both sides:

“In response to your [Arafat] letter of September 9 1993, I [Yitzhak Rabin, Prime Minister of Israel] wish to inform you that, in light of the PLO commitments included in your letter, the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and commence negotiations with the PLO within the Middle East peace process.”22

Israel never recognized the claim that the autonomy to be granted Palestinians pertained to ‘Occupied Palestinian Territories.’ In fact, at no point in the Accords is the West Bank or Gaza labelled ‘occupied territory.’ The ICJ simply fabricated this and lamely concludes:

“Such transfers have taken place, but, as a result of subsequent events, they remained partial and limited.”

This abridged sentence sanitizes the history of the Oslo peace process, and doesn’t so much as hint at what “subsequent events” disrupted the peace process – events that have taken the lives of 1366 Israeli victims of terrorism, mostly civilians.23 Instead, the ICJ claims the only regime is Israeli!

“… Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.”

In short, a corrupt logic holds that Israel is solely in charge in a said area, but it is forbidden to take any effective actions in that given area.

The ICJ blithely argues with no reference to international law:

“The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.”

The ICJ’s denial of Israel’s right to act under Resolution 1373 is particularly grave. Resolution 137324 was adopted by the Security Council under Chapter VII of the UN Charter (“Threats to Peace, Breaches of the Peace and Acts of Aggression”) that invests the Security Council with the power to issue stringent resolutions requiring all nations to comply with the terms set forth in Resolution 1373, citing

“the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts” [italics by author].

The ICJ has no authority and no power over the Security Council to alter the resolution or exclude Israel, a Member State of the UN, from its rights and obligations under Resolution 1373.

The ICJ’s position pretends that a decade of Palestinian autonomy never existed and Palestinians have no margin of control whatsoever over their lives. The threats from suicide bombers and other terrorist acts are magically transformed into an ‘internal problem,’ so that the Security Council Resolutions passed after September 11th, which allow countries to compromise the sovereignty of other polities to combat terrorism, become inapplicable. Elsewhere in the opinion the ICJ denies Israel the right to take anti-terrorism measures anywhere beyond the Green Line because the same territory ‘belongs’ to an entity called ‘Palestine.’

Even the British judge on the Bench, Rosalyn Higgins, felt compelled to note in a separate opinion that:

“Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable.”25

Yet, this and numerous other reservations did not prevent Higgins from voting in favor of adopting the opinion as written.

As far as the ICJ is concerned, Palestinian society lacks any semblance of social organization or self-rule, either on a local or national level, that can be held accountable for terrorism. Yet, at the same time, this same Court holds that Palestinians are such a sustainable entity as to deserve immediate self-determination.

The ICJ patently ignores the other clauses in Oslo II26 which gives the Palestinian Authority full responsibility for Gaza, Jericho and seven major Palestinian cities on the West Bank, including internal security and public order, a responsibility it abrogated by using control of the civil machinery in 450 towns throughout the West Bank to incite the population, including children. It also included turning densely populated areas under full Palestinian control, such as Ramallah and Jenin, into bomb-making factories and staging areas for suicide bombers.

Human Rights Watch – a non-governmental organization (NGO) – is far more thorough in its report on suicide bombings. It doesn’t gloss over Palestinian commitments (and complicity) or hide behind the Palestinian Authority’s non-state status. It has the courage to say:

“Although it is not a sovereign state, the Palestinian Authority has explicit security and legal obligations set out in the Oslo Accords, an umbrella term for the series of agreements negotiated between the government of Israel and the PLO from 1993 to 1996. The PA obligations to maintain security and public order were set out in articles XII to XV of the 1995 Interim Agreement on the West Bank and Gaza Strip. These responsibilities were elaborated further in Annex I of the interim agreement, which specifies that the PA will bring to justice those accused of perpetrating attacks against Israeli civilians. According to article II (3)(c) of the annex, the PA will ‘apprehend, investigate and prosecute perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement.’”27

These clauses in a landmark international accord, as well as other yardsticks examined by Human Rights Watch in their study and found to be relevant, are of no interest to the International Court of Justice.

The ICJ bases its ‘conclusion’ on General Assembly Resolution 58/163 that “reaffirms the right of the Palestinian people … to their independent State of Palestine.”28 The General Assembly, of course, has no authorization to ‘hand out’ polities any more than the ICJ has the right to give this bogus right a legal ‘stamp of approval’ because neither body has actual legislative or executive powers.

Under the Law of Nations, rights go hand-in-hand with responsibilities. Entitlement is irrevocably tied to accountability. The entire opinion penned by the International Court of Justice speaks time and again of Palestinian rights, but not once about Palestinian responsibilities. If Palestinians are unable to behave in a manner in keeping with the most fundamental principles of the law of nations – attacking their neighbors as opposed to peaceful negotiation of differences – then surely Israel has the right to defend such an onslaught of its national security. But, alas, the entire issue of terrorism is considered immaterial to the security barrier question, which the ICJ brands a political ploy that merely grabs Palestinian land and abridges Palestinian rights.

Report of the UN High-level Panel on Threats, Challenges and Change.

On December 2 2004, the UN Secretary-General released a report entitled A more secure world: Our shared responsibility.29

This report, more than one year in the making, acknowledges the global threats of terrorism, and clearly contradicts the ICJ’s Advisory Opinion on some of the core issues regarding terrorism and self-defence, stating that the:

“biggest security threats we face now, and in the decades ahead, go far beyond States waging aggressive war. They extend to … terrorism. … The threats are from non-State actors [E.H., such as the Palestinians] as well as States [E.H., such as Syria, Saudi Arabia, Iran], and to human security as well as State security” [italics by author].

The report continues to challenge the Court assertion that Resolution 1373 is not applicable to Israel [E.H., as the court did without reference to law, or other supportive source] by stating:

“Security Council resolution 1373 (2001) imposed uniform, mandatory counter-terrorist obligations on all States …” [italics by author].

It proceeds to explain that the response to the use of force by a non-State has been inadequate:

“159. The norms governing the use of force by non-State actors have not kept pace with those pertaining to States. … Legally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome Statutes. Legal scholars know this. … The United Nations must achieve the same degree of normative strength concerning non-State use of force as it has concerning State use of force.” And that “… there is nothing in the fact of occupation that justifies the targeting and killing of civilians [italics by author].

“161. … Attacks that specifically target innocent civilians and non-_combatants must be condemned clearly and unequivocally by all.”

  1. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, October 21 2003, paragraph C, 1. (11317) ↑
  2. UN Document A/ES-10/248, November 24 2003, “Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13,” November 24 2003, at: http://domino.un.org/unispal.nsf/0/a5a017029c05606b85256dec00626057?OpenDocument. (10575) ↑
  3. UN General Assembly, International Convention for the Suppression of Terrorist Bombings, Adopted without a vote, 15 December 1997. See: http://www.un.org/ga/documents/gares52/res52164.htm. (10899) ↑
  4. See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraphs 141-142. ↑
  5. “Terrorism” appears only five times in the document, cited in brief quotes from the Israeli brief. In the actual opinion, in the name of the ICJ, the word “terrorism” doesn’t appear even once. ↑
  6. UN General Assembly Resolution 3314 (XXIX). See: http://middleeastfacts.org/content/book/18-aggression-nm-010504.doc. (10495) ↑
  7. UN Security Council, Resolution 1269 Adopted by the Security Council at its 4053rd meeting on October 19 1999. See: http://www.un.int/usa/sres1269.htm. (11375) ↑
  8. UN Security Council Resolution 1368 (2001). See: http://www.mefacts.com/cache/pdf/un-resolutions/10574.pdf. (10574) ↑
  9. UN Security Council 1373 (2001) September 28 2001. (10838) ↑
  10. UN Security Council Resolution 1377 (2001) November 12 2001. (10837) ↑
  11. Between September 1993 (the signing of the Oslo Accords) and February 2003 (prior to completion of the first leg of the fence) more than 1,004 Israelis lost their lives to Palestinian terrorists. ↑
  12. The report includes the following statements: “The Government of Israel has since 1996 considered plans to halt infiltration into Israel from the central and northern West Bank, with the first Cabinet approval of such a plan in July 2001. After a sharp rise in Palestinian terror attacks in the spring of 2002 …” and “I acknowledge and recognize Israel’s right and duty to protect its people against terrorist attacks.” See: Report of the Secretary-General prepared pursuant to GA Res. ES-10/13. (10940) ↑
  13. In short, the PA is competent to rule, but if it fails, Israel is to blame for not providing the relevant material … which the Court in any case rules is immaterial. ↑
  14. UN Security Council Resolution 1456 (2003), [1/20/2003]. (10843) ↑
  15. For a summary of the study see Don Radlauer, “The al-Aqsa Intifada – An Engineered Tragedy,” January 7 2003 at: http://www.ict.org.il/articles/articledet.cfm?articleid=440. For the full study, see http://www.ict.org.il/articles/articledet.cfm?articleid=439. ↑
  16. “Shin Bet report: 1,017 Israelis killed in intifada,” Haaretz, September 27 2004. This report also cites 70% of the fatalities (1,017 persons) and 82% of the wounded (5,598 persons) were civilians during four years of violence (September 2000-September 2004). ↑
  17. See http://www.un.org/law/icc/. (11130) ↑
  18. See Section IV, at: http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-04.htm_#P564_114276. (11455) See also “Element of Crimes” at the Rome Statute of the International Criminal Court, at: http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/elements(e).pdf. (11456) ↑
  19. See Human Rights Watch at http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-04.htm#P589_123822#P589_123822. (11455) ↑
  20. Ibid. ↑
  21. See Article 7 (1) (a) Crime against humanity of extermination at: http://www.rk19-bielefeld-mitte.de/info/Recht/United_Nations/Strafgerichtshof/Elements_of_Crime/Article_7.htm#1. (11456) ↑
  22. PLO-Israel Letters of Mutual Recognition. Exchange of Letters between PLO Chairman Yasser Arafat & Israeli Prime Minister Yitzhak Rabin. September 9 1993. See: http://www.palestine-un.org/peace/p_b.html. (10420) ↑
  23. As of December 3 2004, and since September 1993, 1,366 Jews have been murdered by Palestinian’s terror. For a an updated listing by name see: http://www.masada2000.org/oslo.html. ↑
  24. UN Security Council Resolution 1373 (2001). S/RES/1373 (2001). Adopted by the Security Council at its 4385th meeting, on 28 September 2001. See: http://middleeastfacts.org/content/UN-Documents/PDF/SC-res-1373-sep-28-2001.pdf. (10838) ↑
  25. See Judge Higgins at: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm. ↑
  26. The Israeli-Palestinian Interim Agreement on the West Bank And the Gaza Strip, Washington, D.C. September 28 1995. Full text see: http://www.mefacts.com/_cache/html/oslo/10944.htm. (10944) ↑
  27. HUMAN RIGHTS WATCH. Erased In A Moment: Suicide Bombing Attacks Against Israeli Civilians, October 2002. Obligations of the Palestinian Authority and Armed Palestinian Groups, at: http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-4.htm#TopOfPage. (11262) ↑
  28. UN General Assembly - 58/163. A/RES/58/163. 77th plenary meeting. December 22 2003. The right of the Palestinian people to self-determination. See: http://domino.un.org/UNISPAL.NSF/0/e5eaf52d1c576d0785256e6d0055b152?OpenDocument. (11319) ↑
  29. UN General Assembly Fifty-Ninth Session, 2 December 2004. (11550) ↑

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