The International Court of Justice’s (ICOJ) decision rubber-stamping a
Palestinian-sponsored UN General Assembly resolution holding Israel’s construction
of the security fence “illegal” offends two of my greatest passions: My
attachment to Israel and my love for the law. The Court’s holding (see below) that
Israel has no right to defend itself against Palestinian terrorists because
Israel does not “claim” that Palestine is a state disrespects both Israel and the
law. Since Israel was not a party to the proceeding it could not make any
“claim.” But the Court’s churlish approach is hardly surprising. Israel, as I
pointed out at Rosh HaShanah, has become an international pariah state.
From a legal standpoint, the case in which the Court ruled was highly
peculiar. First the UN General Assembly decided the legal question, namely does the
security barrier violate international law, and then it asked the ICOJ for a
legal opinion agreeing that the General Assembly was right. Obviously, the
General Assembly asked the Court’s opinion not because it was in doubt about the
law but to enhance the resolution’s effect as propaganda. No self-respecting
Court would engage in such a charade.
The ICOJ is hardly a body from which Israel could expect a fair decision. The
President of the Court is the Chinese official who masterminded China’s
response to the Tiennamen Square demonstration and one member of the Court is a
Palestinian by birth. No Israeli jurist is eligible for appointment as a judge of
the ICOJ.
Just reading the decision makes plain that the ICOJ did not set out to find
the law or do justice. Three moves, fatal to any claim of propriety, illustrate
the point. First, the Court adopted without comment the Palestinian/General
Assembly denomination of the security barrier as a “wall”. As you know, more
than 96% of the barrier consists of barbed wire and electronic sensors, backed
by a roadway to allow quick response to any terrorist incursion. The Israelis
call the barrier a “fence”; the Palestinians call it a “wall”. Eschewing both
positions the Israeli High Court used the term “security barrier”. But the
ICOJ, spurning its obligation to appear and to be impartial, chose the
Palestinian’s obviously misleading term “wall”.
Second, at a critical point in its opinion the Court misquoted General
Assembly Resolution 242, enacted after the 1967 War. That resolution, in which
Israel acquiesced, calls for “establishment of a just and lasting peace” which
“should include”... “withdrawal of Israeli armed forces from territories occupied
in the recent conflict”. An earlier version of the quoted sentence had called
for Israeli withdrawal “from the territories occupied in the recent conflict”.
But at the insistence of Israel and others the word “the” was deleted and a
sentence added as one of the principles upon which peace should be based:
“Termination of all claims or states of belligerency and respect for and
acknowledgment of the sovereignty, territorial integrity and political independence of
every state in the area and their right to live in peace within secure and
recognized boundaries free from threats or acts of force;” (Emphasis added). The
legislative history of that addition —to say nothing of the body of the
resolution— shows unmistakably that Israel’s eventual boundaries (and the scope of
its obligatory withdrawal) were to be settled in subsequent negotiations, not by
the resolution. Obviously, the full text of the resolution demonstrates that
the 1949 Line was not to be the final border. By omitting the limitation at
one point, and completely ignoring its force at another the Court read the 1967
resolution as if it confined Israel to the 1949 Armistice Line. That, in turn,
enabled the Court mendaciously to conclude that international law forbade the
construction of a security barrier beyond that line. 1
Third, the Court utterly ignored the decision of the Israeli High Court of
Justice requiring modifications of the security barrier to protect local
Palestinians who were injured by it. That decision significantly changed the facts
before the ICOJ and rested upon interpretations of Israeli law and of treaties
and conventions that the ICOJ also considered. No honest court would treat the
decision of another tribunal, especially a tribunal empowered to act upon the
same matter, as so much judicial waste paper.2 The ICOJ’s conduct in this
respect was disgraceful.
Law aside, the ICOJ decision is profoundly unfair. The UN Charter limits the
U.N.’s power by preserving the member states’ right of self defense.3 The
Court disregarded that limitation (which binds the Court as well as other UN
organs) by announcing for the first time that as far as the UN is concerned the
right of self-defense is of no moment when the attacker is not a State. So the
Court’s opinion pays not the slightest attention to the Palestinian murder
campaign against Israeli men, women, and children. It neither holds the
Palestinians responsible nor affords any weight to the protection the security barrier
has given to the Israeli populace. The Court simply orders Israel to tear it
down. On the other hand, the Assembly resolution before the Court was initiated
by the Palestinians’ UN delegation and the Court found the wall illegal
explicitly because allegedly it violates the Palestinians’ right to
self-determination (that is, to be a nation) and implicitly because the security barrier
route will prejudice the Palestinians in future negotiations over boundaries.
That, after all, is the significance of the Court’s concern with Israel’s actions
beyond the 1949 Armistice Line. The Court’s biased treatment of the parties’
interest is shameful, and its failure in any way to hold the Palestinians
responsible for terrorism is bound to encourage its continuance.
As a religious Jew, I am deeply saddened by the ICOJ’s decision. It gathers
in a seemingly endless parade all the General Assembly and Security Council
resolutions condemning Israel, buttressing the feeling that Israel has become the
“world’s Jew,” an international pariah, a feeling I discussed in my High
Holiday talk. Beyond that, the disingenuousness of the ICOJ decision betrays once
again the great hopes that I felt when the UN was created in New York City
where I was then living. Corruption, bias, hypocrisy, and fecklessness in the
face of genocidal murder campaigns around the globe have rightly tarnished the
UN’s once bright image. Thus the ICOJ decision is for me emblematic of a deeper
rot, a rot which in the long run is far more threatening to mankind than
Israel’s security barrier, problematic though it is in some respects, could ever
be. Sad indeed.
Rabbi George B. Driesen
1The Court treated Resolution 242 as a binding “law.” On its face, however,
the resolution describes what “should” occur, language that is inconsistent
with the enactment of law. The General Assembly has not usually been thought of
as a law making body. Just how the resolution became “law” the Court did not
bother to say, perhaps because it would have been too embarrassing to admit
that the Court had simply accepted the General Assembly’s request in effect that
the Court treat its Resolutions as “law”. Generally, courts jealously guard
their power to say “what the law is”. Marbury v. Madison, 5 U.S. 137
(1803)(court decides whether a Congressional enactment violates the Constitution because
courts must decide “what the law is).”
2Unlike the ICOJ decision, which binds no one, the Israeli decision has
the force of law in Israel.
3“Nothing in the present Charter shall impair the inherent right of
self-defence if an armed attack occurs against a Member of the United Nations....”
UN Charter Article 51.