Reply: Online Edition


In July 2004, Israel-bashing at the United Nations took a new and dangerous turn, including for the first time the UN’s judicial machinery, the International Court of Justice. A coalition dominated by oppressive regimes at the UN requested an advisory opinion from the International Court of Justice (ICJ) regarding the “legality” of the security barrier Israel built to impede the movements of suicide bombers from the West Bank into Israel and the “ramifications” of the barrier – on Palestinians only.

Reply is not a formal legal brief. It is a critique that focuses on examination of the ICJ’s 62-page Opinion – an inquiry that revealed just how far the Bench was willing to go to serve political ends. The Court’s attempt to demonize the State of Israel and ignore Jewish rights by rewriting the last 90-year history of the Arab-Israeli conflict, compelled me to expand this critique to include a broader undoctored version of the “Historical background.”1

Consider just two of the “myths and facts” that surround the Court’s rationale in its opinion on the ‘Wall,’ a barrier that impedes the movement of Palestinian terrorists into Israel, when it states that:

“… it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations. The responsibility of the United Nations in this matter also has its origin in the Mandate [for Palestine] and the Partition Resolution [UN Resolution 181] concerning Palestine” [italics by author].

Myth – The ICJ claims that responsibility to bring about “the realization of the inalienable rights of the Palestinian people … has its origin in the Mandate.”

Fact – Had the ICJ Bench examined the six pages of the “Mandate for Palestine” document, it would have noted that the Mandate for Palestine states explicitly the goal of the Mandate: “the establishment of the Jewish national home [in Palestine].”

Not once in the entire Mandate for Palestine document are Arabs as a people mentioned. Jews were the only group granted political rights in the area designated as Palestine, the National home of the Jewish people. There is a clear differentiation between political rights granted Jews, and civil and religious rights granted members of non-Jewish groups residing in Palestine. The Mandate does not mention the word “Palestinians” or the phrase “Palestinian Arabs” even once, as employed time and again in the ICJ’s Opinion.

Myth – The ICJ claims that responsibility to bring about “the realization of the inalienable rights of the Palestinian people” also depends on “the Partition Resolution [UN Resolution 181] concerning Palestine.”

Fact – It appears that the ICJ was unaware that in November 1947, all Arab states voted en bloc against UN Resolution 181 and kept their promise to defy its implementation by force. At the same time that _the ICJ was re-writing history and building a case against the ‘Wall,’ _the Palestinian Authority was rejecting this ‘pillar of Palestinian self-determination,’ as stated clearly in the PLO Charter2 vis-à-vis the Mandate and the “Partition Plan”:

Article 19: “The partition of Palestine in 1947 and the establishment of the state of Israel are entirely illegal, regardless of the passage of time …”

Article 20: “The Balfour Declaration, the Mandate for Palestine, and everything that has been based upon them, are deemed null and void.”

In another blunder, the Bench was willing to go to extraordinary lengths, undermining fundamental principles of the United Nations, in denying Israel’s rights to battle terrorism. Thus, one encounters the Court’s fallacious interpretation of Article 51 of the UN Charter, declaring that Israel cannot claim self-defence against Palestinian terrorism because “the attacks against it are [not] imputable to a foreign State.”

Ironically, by the same logic, the British judge on the Bench, Rosalyn Higgins (who voted in favor of adopting the Opinion as written), should now advise her Government to refrain from any act of self-defence, since the four terror attacks that rocked London’s public transportation system on July 7 2005, that left 56 people dead and over 700 injured, were not “imputable to a foreign State,” and originated “within a territory over which … [Britain] … exercises control …”

“A recommendation’s significance will not least depend on the moral authority of the adopting organ.

“Only the maintenance of high and impartial standards of decision-making in the international organ will endow its recommendations with persuasive force for all sectors of the international community.

“The application of politically motivated double standards or the use of general resolutions to champion positions in political quarrels are liable to undermine the credibility of the international organ even in areas of relative agreement.”

In fact, the International Court of Justice’s Advisory Opinion on Israel’s security barrier merits the same treatment as another shameful United Nations document – the 1975 General Assembly Resolution 3379 that equated Zionism with racism. Israel’s ambassador to the UN, the late Haim Herzog, tore up that insidious document from the General Assembly’s podium.

An ICJ that welcomed the arguments of a master terrorist such as Yasser Arafat, but gives no weight to the words and opinions of former members of the International Court of Justice, and turns a deaf ear to Israeli victims of terror, and that cites convictions, declarations, and resolutions of the General Assembly as a source of customary international law, can only be held in contempt of its own mandate.

The Truth May Not Always Win, But it is Always Right.

  1. See Appendix I. ICJ Advisory Opinion, 9 July 2004, “Historical background” in the preamble.
  2. See Appendix G. The PLO Charter.

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