The U.N. handicaps Israel, along with the rest of us.
By Anne Bayefsky
The recent decision on Israel's security fence by the International Court of Justice (ICJ), the U.N.'s legal arm, is a classic example of how the vilification of Jews does not end with Jews.
United Nations mistreatment of the Jewish state takes many forms, from the refusal to admit Israel into the negotiating and electoral groups of many U.N. operations, to Israel's demonization by U.N. human-rights machinery applied to no other state. Though antithetical to the U.N.'s founding principle of the equality of nations large and small, many believe that the consequences of these facts of U.N.-life can be confined to Jewish self-determination. The ICJ has proved them wrong.
The Court has declared four new rules about the meaning of the right of self-defense in the face of terrorism today:
(1) There is no right of self-defense under the U.N. Charter when the terrorists are not state actors.
(2) There is no right of self-defense against terrorists who operate from any territory whose status is not finalized, and who therefore attack across disputed borders.
(3) Where military action is perpetrated by "irregulars," self-defense does not apply if the "scale and effects" of the terrorism are insufficient to amount to "an armed attack...had it been carried out by regular armed forces." (The scale in this case is 860 Israeli civilians killed in the last three years — the proportional equivalent of at least 14 9/11's.)
(4) Self-defense does not include nonviolent acts, or in the words of Judge Rosalyn Higgins: "I remain unconvinced that non-forcible measures (such as the building of a wall) fall within self-defence under Article 51 of the Charter."
These conclusions constitute a direct assault on the ability of every U.N. member to fight international terrorism. The U.N. Charter was not a suicide pact and Security Council resolutions in response to 9/11 were intended to strengthen the capacity to confront violent non-state actors, not defeat it.
Having couched their analysis in general terms, however, some of the judges were concerned that the go-ahead for Palestinian suicide bombers might not be obvious enough. So Judge Abdul Koroma of Sierra Leone wrote: "It is understandable that a prolonged occupation would engender resistance." Judge Nabil Elaraby of Egypt said, "Throughout the annals of history, occupation has always been met with armed resistance. Violence breeds violence." He "wholeheartedly subscribe[d] to the view" that there is "a right of resistance." Judge Hisashi Owada of Japan spoke of the "the so-called terrorist attacks by Palestinian suicide bombers against the Israeli civilian population."
The judges need not have worried. Within hours a joint statement from Hamas, Islamic Jihad, and Yasser Arafat's Fatah organization announced: "We salute the court's decision." Proclaimed a Hamas communiquÃ© "The racial wall represents the true image of the Zionist entity...The Islamic Resistance Movement, Hamas, welcomes the ICJ's decision and considers it a good step in the right direction.... We stress the need to continue our efforts and use all available means to stop the construction of the racial wall and remove its effects." The Popular Front for the Liberation of Palestine issued a statement hailing the ruling as "a step forward." This judgment clearly played very well to an audience from the State Department's list of foreign terrorist organizations.
Furthermore, said the Court, the right of self-defense does not apply against Palestinian terrorism because it operates from Israeli-controlled territory and is therefore not international. The international borders between Iran, the departure point of the arms-laden ship Karine-A and its intended port in Gaza, or between Damascus, headquarters of The Front for the Liberation of Palestine's General Command, and suicide bombers in Haifa, apparently slipped the judges' minds.
These legal results did not materialize in a vacuum: They were the product of the Court's insidious historical revisionism and selectivity. The 1948 war was not an aggressive assault on the nascent Jewish state by combined Arab forces after their rejection of the U.N. Partition Plan. Instead, "On 14 May 1948 Israel proclaimed its independence...armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented." The 1967 war was not another of the five successive wars Israel has been forced to wage by successive Arab rejectionists. Instead, "the 1967 armed conflict broke out between Israel and Jordan." The pre-1967 status of the territories as either "disputed" or "occupied" is crucial to the legal issues. Occupied territory requires that the land previously have belonged to somebody else. But the Court said: "there [is] no need for any enquiry into the precise prior status of those territories."
Judge Elaraby apparently forgot he was no longer Egyptian Ambassador to the United Nations — a post he held until 1999 — and used his judicial robes to deliberately misrepresent the content of Security Council Resolution 242. In his words "Resolution 242...called for the withdrawal of Israeli armed forces from the territories occupied in the conflict." In fact, painstaking negotiations resulted in the omission of "the" before the word territories. 242 speaks of "Withdrawal of Israeli armed forces from territories occupied in the recent conflict..." precisely so as not to pre-judge the outcome of negotiations over ownership of the territories or future lines of withdrawal.
Having decided that the historical ownership of the territories prior to 1967 is irrelevant, the Court took it upon itself to determine that today all of the territories "which before the  conflict lay to the east of the Green Line" "including East Jerusalem" are "Palestinian territories" It did not matter that the parties to the conflict have agreed that final borders and the status of Jerusalem will be determined by negotiation. Instead, Judge/Ambassador Elaraby used his judicial pulpit to advance a long-held U.N. strategy of imposing results. Having misstated Israel's obligation under 242, he claimed: "It is...politically unsound to...confin[e] it [242's obligations] to a negotiating process." Or as Jordanian Judge Awn Al-Khasawneh, a representative of Jordan at the U.N. General Assembly for 17 years until the mid-1990s, said: "The discharge of international obligations...cannot be made conditional upon negotiations" — international obligations to negotiate notwithstanding.
Into this cumulative distortion of history and law was injected the biggest U.N. deception of all. The Court's operating premise (accurately described by Elaraby) was simply this: "Occupation, as an illegal and temporary situation, is at the heart of the whole problem." A 56-year Arab campaign to end the "Judaization" of the region — as a U.N. Human Rights Commission resolution describes Jews on Arab land — was totally ignored. Judge Higgins disparagingly describes the Court's behavior (though she refuses to dissent) in a concurring opinion: "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."
Therefore, it is no surprise that within a week the Court's decision has become the subject of another 10th General Assembly Emergency Session — reconvened for the thirteenth time to condemn Israel and to call for a plethora of future activities intended to further demonize and isolate the Jewish state. Taking their cue from Annan, who immediately pounced on the decision to make demands of Israel, there will be no pause for a single emergency session of the General Assembly on the millions dead or dying in Sudan.
It was no accident that the only dissenting opinion on the merits of the case came from Tom Buergenthal, a child survivor of the concentration camps of Auschwitz and Sachsenhausen. He needed no lessons about the face of evil, its methodologies, and its consequences. How sad for the rule of law that he spoke alone.
The Arab drive to destroy the state of Israel has debased the U.N., sullied its charter, perverted the meaning of human rights, and ransacked international law and its highest Court. How many more of the universal ideals upon which our world depends must be desecrated before we say "enough"?
Anne Bayefsky is a senior fellow at the Hudson Institute.