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His Excellency Mr Pierre Schori
Ambassador and Permanent Representative for Sweden to the UN
July 17, 2004
Subject: THE UN VOTE IN THE WAKE OF THE ICJ ADVISORY
Sir,
I note with respect the remarks of Swedish Minister for Foreign Affairs,
Laila Freivalds about the opinion of the ICJ on the Israeli separation
barrier and her call, encouraging Israel to give careful consideration to
the recommendations of the Court. I am writing to you and the Foreign
Minister to ask you, as fair minded persons, to please consider the
following realities before casting your vote on the motion arising from
the recent ICJ advisory. (As I do not have an email address for Mrs.
Freivalds, I will be grateful if you will kindly forward a copy of this
letter to her).
ISRAEL HIGH COURT RULES AGAINST THE ANTI-TERRORIST BARRIER (ATB)
It was unfortunate that timing did not permit an in-depth examination by
the ICJ of the judgment given by the Israel High Court in this matter, as
I believe it meets the basic objections of Sweden to the barrier and that
Israel's acceptance of the judgment should be encouraged, rather than
ignored. It provides a more positive result than would a punitive UN vote
in the present circumstances. . The Israel High Court court, well known
for its impartiality, found that indeed, the ATB is causing harm to
Palestinians, and that the government must observe a greater balance
between the optimum security route and the impact on the fabric of
Palestinian life. In giving judgment, Chief Justice Barak said "A
democracy must sometimes fight with one hand tied behind her back". In
effect, the High Court ruled that everything must be done to minimize
hardship to Palestinians and 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.
The Israel government announced complete acceptance of the high court
ruling. It undertook to comply in full, and construction was immediately
halted while a less intrusive route is planned, even at the cost of some
security.
In the circumstance, the serious question must be asked whether the
proposed UN resolution will contribute anything more than the Israel high
court ruling towards ending the conflict, or will it impede progress
towards peace.
RIGHT TO SELF-DEFENCE - AN INCORRECT RULING
Clause 139 of the ICJ advisory denied Israel's right to self defence on
the strange grounds that Palestinian terror does not constitute an armed
attack by a state. While this ruling was obviously directed against
Israel, if unchallenged, it will carry extremely dangerous implications
for all countries which will be denied the right of self-defence against
terror attacks from armed groups which are not states.
This ICJ conclusion is faulty and it is essential in the interests not
only of Israel, but of all members that it be corrected. Clause 139 reads
"Article 51 of the Charter thus recognizes the existence of an inherent
right of self-defence in the case of armed attack by one State against
another State. However, Israel does not claim that the attacks against it
are imputable to a foreign State" from which it concludes that Article 51
of the Charter has no relevance to Israel. But the words "in the case of
armed attack by one State against another" are nowhere to be found in
article 51. They were incorrectly added by the ICJ.
EFFECTIVENESS OF THE (ATB)
How does one measure the comparative injustices of preventing the 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 of Palestinians affected by construction
of the (ATB)?
The advisory is remiss in ignoring the high effectiveness of the ATB in
fulfilling its purpose. 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.
HISTORY
The cursory consideration given to the all-important contributory reasons
for the ATB is graphically illustrated in clause 71 of the advisory, which
purports to give a potted history of the conflict. Referring to the 1947
UN partition resolution, it 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 then 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, "Addressing the reality that
"the question of the construction of the wall was only one aspect of the
Israeli-Palestinian conflict", 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" (para. 54)". "In fact", she wrote, "it never does so. There is
nothing in the remainder of the Opinion that can be said to cover this
point. Further, I find the 'history' as recounted by the Court in
paragraphs 71-76 neither balanced nor satisfactory".
PROPRIETY
The propriety of referring this matter to the ICJ by the UN was already in
doubt when first proposed. In the Arab sponsored UN vote, referring the
barrier to the ICJ, 8 countries voted against and 74 abstained. In the
resulting advisory, no less than seven of the judges delivered separate
opinions expressing various differences from the majority decision.
The absence from the hearing of Israel, a party to the dispute, 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. Egyptian Judge Elaraby also discussed the judicial
propriety of adjudicating in the absence of one of the parties.
Netherlands, Judge Kooiman stated clearly " I must confess that I have
felt considerable hesitation as to whether it would be judicially proper
to comply with the request of the Assembly"
Judge Kooimans also referred to a January 29 letter from the Israeli
Ministry of Foreign Affairs to the Registrar of the Court stating that
"Israel trusts and expects that the Court will look beyond the request to
the wider issues relevant to this matter" (MWP 2004/38, covering letter).
In this respect it was said that resolution ES10/14 is "absolutely silent"
on the terrorist attacks against Israeli citizens and thus "reflects the
gravest prejudice and imbalance with the requesting organ". Israel,
therefore, requested the Court not to render the opinion".
THE CONTEXT
In the words of Judge Kooiman. ". It (the Court) cannot be expected to
present a legal opinion on the request of a political organ without taking
full account of the context in which the request was made". .. The rather
oblique references to terrorist acts which can be found at several places
in the Opinion, are in my view not sufficient .."
Unfortunately the advisory does not take the context into account. For
example GA resolution ES 10/14 specifically calls on the ICJ to note the
agreements between Israel and the PLO. Inexplicably, this was ignored. Had
the Court seriously examined compliance by the parties with their
obligations in terms of their agreements, as it should have done, it could
not have reached the conclusions it did. It would have found for instance
that Israel's construction of the ATB, complies fully with its duty under
the Oslo Accords. Article XV of the of the 1995 (Oslo II) Interim
Agreement specifically provides that "Both sides shall take all measures
necessary in order to prevent acts of terrorism, crime and hostilities
directed against each other, ..". Having regard to 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 more so is this true in view of the PA's tolerance of, and even
cooperation with, Hamas, Islamic Jihad, PFLP and other openly terrorist
organizations 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. This clause clearly
states "Except for the arms, ammunition and equipment of the Palestinian
Police described in Annex I, and those of the Israeli military forces, no
organization, group or individual in the West Bank and the Gaza Strip
shall manufacture, sell, acquire, possess, import or otherwise introduce
into the West Bank or the Gaza Strip any firearms, ammunition, weapons,
explosives, gunpowder or any related equipment, unless otherwise provided
for in Annex I.
It is also difficult to understand what alternative is open to Israel in
countering terror attacks especially in view of the PA's violation of its
obligation under Article XXII to abstain from incitement, take legal
measures to prevent such incitement and to ensure that their respective
educational systems contribute to the peace between the Israeli and
Palestinian peoples and to peace in the entire region
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, it will hopefully minimize, if not avoid the need for
violent incursions into PA controlled territory..
SC RESOLUTION 242
In clause 74, the ICJ makes the following 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."
In his separate opinion Judge Kooiman commented "Nothing is said, however,
about the status of the West Bank between the conclusion of the General
Armistice Agreement in 1949 and the occupation by Israel in 1967.." ..
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 defence. 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".
The unavoidable logical conclusion is that Israel's presence in the West
Bank is perfectly legal 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 equally justifiable in terms of international law, subject
to the conditions imposed by the Israel High Court ruling referred to
earlier.
CONCLUSION
The matter cannot be summed up better than in the words of Sierra Leone,
Judge Koroma. In his separate opinion he wrote " It is now up to the
General Assembly in discharging its responsibilities under the Charter to
treat this Advisory Opinion with the respect and seriousness it deserves,
not with a view to making recriminations but to utilizing these findings
in such a way as to bring about a just and peaceful solution to the
Israeli-Palestinian conflict, a conflict which has not only lasted for far
too long but has caused enormous suffering to those directly involved and
poisoned international relations in general". A UN vote, encouraging the
positive developments in Israel as manifested by the disengagement plan
and Israel's complete acceptance of its High Court ruling about the ATB,
would, no doubt, better serve the aim of a just solution than any
suggestions for punitive measures.
Maurice Ostroff
Israel |
