In many respects, the International Court of Justice’s (ICJ) Advisory Opinion on Israel’s security barrier does not deserve to be dignified by a learned rebuttal. The Opinion deserves the same treatment as another shameful United Nations’ document which Israel’s ambassador to the UN, the late Haim Herzog, publicly tore up from the dais in a demonstration of protest and repugnance, after the motion was passed – the 1975 General Assembly Resolution 3379 that equated Zionism with racism.
Nevertheless, the ICJ’s opinion needs to be addressed not only due to the biased manner in which it weighed the ‘evidence’, but also due to the evidence it failed to examine – including a host of relevant UN documents. These documents are quoted selectively or totally ignored, while the Court’s narrative of the conflict boldly rewrites history – recent and past, without so much as a blush.
The Opinion is so sloppy that it wants the reader to believe that the League of Nations document – the 1922 “Mandate for Palestine” that laid down the Jewish legal right to settle anywhere in western Palestine, the area between the Jordan River and the Mediterranean Sea – was the founding document for Palestinians’ self-determination! It’s not just that the members of the Court didn’t do their history homework, but they didn’t even bother to read the six-page legally binding “Mandate for Palestine” document, before authoritatively citing it as one of the cornerstones for Palestinian self-determination. In essence, the ICJ ‘converted’ the “Mandate for Palestine” from the machinery for creating a Jewish Homeland into a founding document for Palestinian Self-Determination. This single misstep of the International Court of Justice essentially rendered its own case null and void.
The Opinion is so biased that it found terrorist activities to be irrelevant in its judicial investigation. The ICJ that cites the Secretary-General’s Report on the security fence as a key document and a major source of information for its opinion, skips the part of the same report where Kofi Annan, the former UN Secretary-General, cites: “After a sharp rise in Palestinian terror attacks in the spring of 2002, the [Israeli] Cabinet approved… construction of… [a security] Barrier.” Not only does the UN Report label the Palestinian actions “terror” but it also clearly establishes, in its own words, the cause for building a security barrier.
The Advisory Opinion is so incompetent that it demonstrates a total disregard or a lack of understanding of the UN’s own legal machinery by treating General Assembly Resolutions as a source of law. Highly qualified legal opinions by past members of the ICJ, including a past president of the Court, who have gone on record to underscore that General Assembly resolutions carry absolutely no ‘legislative’ power and cannot be used as a source of law, labeling such attempts: “illusion.” Yet, this Court uses such GA resolutions to support its illusive conclusions. Professor Stephan M. Schwebel, former President of the International Court of Justice (1997-2000) has said that:
“The General Assembly of the United Nations can only, in principle, issue recommendations which are not of a binding character, according to Article 10 of the Charter of the United Nations.”
Schwebel also cites the opinion of Judge Sir Hersch Lauterpacht, a former member judge of the International Court, who declared on another occasion that:
“The General Assembly has no legal power to legislate or bind its members by way of recommendation.”
The Opinion is so devious that it ‘found’ the need to selectively quote from the 1970 GA Resolution 2625: “Emphasized that ‘No territorial acquisition resulting from the threat or use of force shall be recognized as legal.'” But the Court hides from the reader that the same Resolution subsequently clarifies that: “Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.” [E.E.H., such as in Self-Defence] “Furthermore, no one has taken the Court to task for the deceitful ‘abridged’ historical narrative they concocted which erases all references of Arab aggression during the British Mandate period (1922-1948), and through 1948, 1956, 1967 and 1973 as well as Israel’s continuing fight of self-defence against Palestinian terrorism.
Another case of doctored use of historical documents: The Court states that Security Council Resolution 242 (1967) emphasized, among other things, the call for “withdrawal of Israel armed forces from territories occupied in the recent conflict.” The ICJ misleads the readers by simply removing from this principle the need, as stated in Resolution 242, for withdrawal to “secure and recognized boundaries” that will not invite future Arab aggression.
According to the PLO’s legal advisor, the ICJ consciously sought to engage: “The United States in a tango of mutual deterrence” and “chart a path for the international community to counter the United States’ veto power.” The Bench allowed its chambers to become a political instrument abandoning any semblance of fairness or professionalism, for political gain. The above examples are only the tip of the iceberg. See my book “Reply” Available on line at: