UN v. Israel

As you should know, the "Palestinians" successfully used the UN and the World Court to demonize Israel once again. This time, an advisory opinion regarding the legality of the wall that Israel is erecting within "Palestinian territory" on the West Bank in an effort to minimize and/or eliminate terrorist attacks from the West Bank. A barrier already separates Israel proper from Gaza and the suicide bombings that have plagued Israel since Arafat declared the 2000 Intifada have all come from West Bank-based terrorists. Since the construction of the wall commenced, and especially since Jenin and Nablus and some of the other terrorist swamps have been walled-off from the Green Line, terrorist attacks have fallen precipitously.

The World Court's jurisdiction is based on consent -- if one party to a dispute does not consent, the World Court cannot exercise jurisdiction. The UN dodged this requirement by asking the Court for an "advisory opinion," which technically allows the Court to pontificate without actual parties to a dispute. Nonetheless, Israel's refusal to consent to this kangaroo court proceeding had no effect on 13 of the 14 judges who exercised their lack of authority to condemn Israel. Only Judge Thomas Bruegenthal had the honesty and integrity to realize that the Court was being used as a dupe. Here are excerpts from his Declaration in opposition to the court's ruling (his full opinion is available on the ICJ's website under "What's New"):

It may well be, and I am prepared to assume it, that on a thorough analysis of all relevant facts, a finding could well be made that some or even all segments of the wall being constructed by Israel on the Occupied Palestinian Territory violate international law (see para. 10 below). But to reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self‑defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subjected, cannot be justified as a matter of law. The nature of these cross‑Green Line attacks and their impact on Israel and its population 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 . . . In my view, the humanitarian needs of the Palestinian people would have been better served had the Court taken these considerations into account, for that would have given the Opinion the credibility I believe it lacks.

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5. Whether Israel’s right of self‑defence is in play in the instant case depends, in my opinion, on an examination of the nature and scope of the deadly terrorist attacks to which Israel proper is being subjected from across the Green Line and the extent to which the construction of the wall, in whole or in part, is a necessary and proportionate response to these attacks. As a matter of law, it is not inconceivable to me that some segments of the wall being constructed on Palestinian territory meet that test and that others do not. But to reach a conclusion either way, one has to examine the facts bearing on that issue with regard to the specific segments of the wall, their defensive needs and related topographical considerations.

Since these facts are not before the Court, it is compelled to adopt the to me legally dubious conclusion that the right of legitimate or inherent self‑defence is not applicable in the present case. The Court puts the matter as follows:

“Article 51 of the Charter . . . 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.

The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self‑defence.

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” (Para. 139.)

6. There are two principal problems with this conclusion. The first is that the United Nations Charter, in affirming the inherent right of self‑defence, does not make its exercise dependent upon an armed attack by another State . . . Article 51 of the Charter provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self‑defence if an armed attack occurs against a Member of the United Nations . . .” Moreover, in the resolutions cited by the Court, the Security Council has made clear that “international terrorism constitutes a threat to international peace and security” while “reaffirming the inherent right of individual or collective self‑defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)” (Security Council resolution 1373 (2001)). In its resolution 1368 (2001), adopted only one day after the September 11, 2001 attacks on the United States, the Security Council invokes the right of self‑defence in calling on the international community to combat terrorism. In neither of these resolutions did the Security Council limit their application to terrorist attacks by State actors only, nor was an assumption to that effect implicit in these resolutions . . .

Second, Israel claims that it has a right to defend itself against terrorist attacks to which it is subjected on its territory from across the Green Line and that in doing so it is exercising its inherent right of self‑defence. In assessing the legitimacy of this claim, it is irrelevant that Israel is alleged to exercise control in the Occupied Palestinian Territory ¾ whatever the concept of “control” means given the attacks Israel is subjected from that territory ¾ or that the attacks do not originate from outside the territory. For to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper. Attacks on Israel coming from across that line must therefore permit Israel to exercise its right of self‑defence against such attacks, provided the measures it takes are otherwise consistent with the legitimate exercise of that right . . .

Judge Bruegenthal is no pro-Israeli stooge. He continually discusses the "hardship" that Palestinians face due to the wall, but at least he is intellectually honest enough to realize that this proceeding is farcical.