Elisheba
08-06-2004, 04:15 PM
The International Court of Justice (ICJ) advisory opinion against Israel’s security fence has been harshly criticized. It lacks credibility, disregards the wider context of the conflict; ignores Palestinian terrorism, denies Israel’s right of self defense; and its history of the conflict is unbalanced. And that’s just from the ICJ judges themselves.
Despite the UN General Assembly’s overwhelming approval of the ICJ opinion a week ago, the separate opinions of the judges reveal a far more complex picture. Only the judge from the United States, Thomas Buergenthal, voted against the advisory opinion, yet the British, Dutch and Japanese judges all expressed serious reservations.
Judge Buergenthal minced no words in his dissenting opinion. He wrote that Pa1estinian terrorist attacks “are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings, barely touches on that subject.”
The British judge, Rosalyn Higgins, was equally blunt about the lack of context: “The Court states that it ‘is indeed aware that the question of the wall is part of a greater whole’ and it would take this circumstance carefully into account in any opinion it might give. In fact, it never does so.”
Elsewhere Judge Higgins called the court’s history of the Arab-Israeli conflict “neither balanced nor satisfactory.” She criticized the attempt to link this case with the Namibia case that condemned apartheid in South Africa, as did the Dutch and Japanese judges. Judge Higgins was clearly exasperated by the court’s ludicrous conclusion that Israel has no right of defense against Palestinian terrorists: “I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory.
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. This is formalism of an uneven handed sort.” Judging by the strength of her objections, it is surprising that she did not vote against the opinion.
The two Arab judges were not satisfied with depriving Israel of its right to self- defense. The Jordanian judge, Awn Shawkat Al Khasawneh attacked the Road Map, the only peace plan accepted by Israelis, Palestinians and the Quartet mediators. His legal opinion was that the road maps “mutual and reciprocal obligations” no longer exist.
What are the primary Palestinian obligations under the road map? Ending terrorism, reforming the political process and ending corruption.
The opinion of the Egyptian judge, Nabil Elaraby, best exemplified how this court did not let facts get in the way of its opinion. He wrote that Security Council resolution 242 “called for the withdrawal of Israeli armed forces from the territories occupied in the conflict.”
In fact, resolution 242 calls for Israeli withdrawal “from territories” captured in the 1967 Six Day War, neither “from the territories” nor “from all territories.” Arthur Goldberg, US ambassador to the UN when the resolution was negotiated, confirmed that understanding: “The notable omissions — which were not accidental — in regard to withdrawal are the words ‘the’ or ‘all’ and the ‘June 5, 1967 lines’ ... the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.”
Less subtle Is Judge Elaraby’s justification of Palestinian terrorism: “Throughout the annals of history, occupation has always been met with armed resistance. Violence breeds violence.” Not content with distorting facts, Judge Elaraby also invented them: “Over 100,000 civilian noncombatants have been rendered homeless and hapless” due to the construction of the fence, he wrote.
If 100,000 Palestinians had been made homeless by the fence, it would certainly be a tragedy except that it’s a lie. Even the April 2004 report of the Palestinian Central Bureau of Statistics tells a very different story - Ten destroyed and 14 partially damaged residential buildings due to the fence.
Israel should not be asked to respect the court’s opinion, when several of the court’s own judges find it so difficult to do so. The complaints go far beyond normal dissent. They show exasperation with the biased request from the General Assembly to condemn this nonviolent response to terror without reference to the terror that necessitated it.
The opinion is an obstacle to peace, not an expression of justice. It sustains the illusion that violence pays and will be rewarded, negating the possibility of negotiations. It is regrettable that yet another important world body has been demeaned and diminished by those with extremist political objectives in the relentless drive to isolate Israel.
Malcolm Hoenlein, the writer is executive vice-chairman, Conference of Presidents of Major American Jewish Organizations.
http://www.israel-commentary.org/
Despite the UN General Assembly’s overwhelming approval of the ICJ opinion a week ago, the separate opinions of the judges reveal a far more complex picture. Only the judge from the United States, Thomas Buergenthal, voted against the advisory opinion, yet the British, Dutch and Japanese judges all expressed serious reservations.
Judge Buergenthal minced no words in his dissenting opinion. He wrote that Pa1estinian terrorist attacks “are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings, barely touches on that subject.”
The British judge, Rosalyn Higgins, was equally blunt about the lack of context: “The Court states that it ‘is indeed aware that the question of the wall is part of a greater whole’ and it would take this circumstance carefully into account in any opinion it might give. In fact, it never does so.”
Elsewhere Judge Higgins called the court’s history of the Arab-Israeli conflict “neither balanced nor satisfactory.” She criticized the attempt to link this case with the Namibia case that condemned apartheid in South Africa, as did the Dutch and Japanese judges. Judge Higgins was clearly exasperated by the court’s ludicrous conclusion that Israel has no right of defense against Palestinian terrorists: “I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory.
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. This is formalism of an uneven handed sort.” Judging by the strength of her objections, it is surprising that she did not vote against the opinion.
The two Arab judges were not satisfied with depriving Israel of its right to self- defense. The Jordanian judge, Awn Shawkat Al Khasawneh attacked the Road Map, the only peace plan accepted by Israelis, Palestinians and the Quartet mediators. His legal opinion was that the road maps “mutual and reciprocal obligations” no longer exist.
What are the primary Palestinian obligations under the road map? Ending terrorism, reforming the political process and ending corruption.
The opinion of the Egyptian judge, Nabil Elaraby, best exemplified how this court did not let facts get in the way of its opinion. He wrote that Security Council resolution 242 “called for the withdrawal of Israeli armed forces from the territories occupied in the conflict.”
In fact, resolution 242 calls for Israeli withdrawal “from territories” captured in the 1967 Six Day War, neither “from the territories” nor “from all territories.” Arthur Goldberg, US ambassador to the UN when the resolution was negotiated, confirmed that understanding: “The notable omissions — which were not accidental — in regard to withdrawal are the words ‘the’ or ‘all’ and the ‘June 5, 1967 lines’ ... the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.”
Less subtle Is Judge Elaraby’s justification of Palestinian terrorism: “Throughout the annals of history, occupation has always been met with armed resistance. Violence breeds violence.” Not content with distorting facts, Judge Elaraby also invented them: “Over 100,000 civilian noncombatants have been rendered homeless and hapless” due to the construction of the fence, he wrote.
If 100,000 Palestinians had been made homeless by the fence, it would certainly be a tragedy except that it’s a lie. Even the April 2004 report of the Palestinian Central Bureau of Statistics tells a very different story - Ten destroyed and 14 partially damaged residential buildings due to the fence.
Israel should not be asked to respect the court’s opinion, when several of the court’s own judges find it so difficult to do so. The complaints go far beyond normal dissent. They show exasperation with the biased request from the General Assembly to condemn this nonviolent response to terror without reference to the terror that necessitated it.
The opinion is an obstacle to peace, not an expression of justice. It sustains the illusion that violence pays and will be rewarded, negating the possibility of negotiations. It is regrettable that yet another important world body has been demeaned and diminished by those with extremist political objectives in the relentless drive to isolate Israel.
Malcolm Hoenlein, the writer is executive vice-chairman, Conference of Presidents of Major American Jewish Organizations.
http://www.israel-commentary.org/