Monday, November 28, 2011

But The Int'l Court of Justice Decided

One of the claims the anti-Yesha crowd asserts in the field of international law is the use of the term "Occupied Palestinian Territory" by the International Court of Justice. For example, at para. 70-78:

At the close of its analysis, the Court notes that the territories situated between the Green Line and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, the Court observes, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories have done nothing to alter this situation. The Court concludes that all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of occupying Power.

Well, this "occupation" actually is not illegal in and of itself. If Israel responded to aggression with defensive operations, especially since no Arab state and the terrorist groups they sponsored ever honored or respected that Green Line during the 19-year period prior to 1967, Israel's "occupation" could be just.

The Court's language, true, is a bit problematic here at para. 87:

The Court first recalls Article 2, paragraph 4, of the United Nations Charter, which provides that:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,”

and General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States” (hereinafter “resolution 2625 (XXV)”), in which the Assembly emphasized that

“No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

...the same is true, it observes, of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force.

Who, then, was the aggressor in and prior to 1967, and can a state, in a defensive action, assert a territorial claim? And, I stress, we have not discussed Israel's rights to the territories of Judea and Samaria, as well as Gaza in principle, reflected in League of Nations Mandate decisions of 1922 and 1923, following the San Remo Conference decision of 1920 and the spirit of the deliberations of the 1919 Versailles Peace Conference.  As noted, "the ICJ says absolutely nothing about the fact that the League of Nations Mandate referred to 'the establishment in Palestine of a national home for the Jewish people' and that this injunction was understood at the time by the League of Nations and by the British Mandatory Power as applying to the whole of Palestine west of the River Jordan, that is, including the present-day West Bank".

More mix-up is in the decision textof the ICJ Opinion, at para. 101, where you can read:

The Court accordingly finds that that [the IVth] Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.

But if there is no "precise prior status", perhaps the judges are wrong?

There is an inherent contradiction as welll as sever unclarity here.

Furthermore, Judge Pieter Kooijmans of The Netherlands, in a separate opinion, added at para. 30,

"The Court has refrained from taking a position with regard to territorial rights and the question of permanent status."

In addition, Israel assumed the administration over the territory after the Kingdom of Jordan, which had illegally annexed those territories in April 1950 following a military occupation, attacked Israel which led to the 1967 Six-Day War.  The region has been essentially disputed land with the claimants being Israel, Jordan, and Arabs referring to themeselves a "Palestinians". The final status and borders are final negotiations issues according to UN Security Council Resolutions 242 and 338 and the language of the Camp David Agreements and the Oslo Accords.

All this is ignored, which I would say is either bias or prejudice, political or judicial.

The court's "historical narrative" has as its chronology that the Armistice Agreement of 1949 is followed immediately at para. 73 by this formulation:

"In the 1967 armed conflict, Israeli forces occupied all the territories which had constituted Palestine under British Mandate (including those known as the West Bank, lying to the east of the Green Line)."

As I've emphasized, the years and character of Jordanian rule are not mentioned, nor is there any examination of Jordan's status in Judea and Samaria, the geographical terms, we should recall, employed by the United Nations in its November 29, 1947 partition recommendation. The historical narrative of the ICJ was critically flawed as pointed out in the separate opinions of the minority judges such as Judge Rosalyn Higgins of the United Kingdom, comments in her separate opinion at para. 16:

"I find the 'history' as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory."

Funnily enough, there was a Jordanian judge sitting, Judge Awn Shawkat Al-Khasawneh who, as expected, ignored any anti-Jordanian matters that could spoil the anti-Israel opinion.

In March 1994, U.S. Ambassador to the UN Madeleine Albright, stated as recorded in UN Security Council Official Records, 3351st Meeting, 18 March 1994, UN Doc. S/PV.335 p.12 (1994):

"We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory. In the view of my government, this language could be taken to indicate sovereignty, a matter which both Israel and the PLO have agreed must be decided in negotiations on the final status of the territories."

So, what about this "occupation" business?

As Robbie Sobel pinpoints:

"From 1948 till 1967 the West Bank had been under Jordanian rule and the Gaza Strip under Egyptian control. The UN General Assembly however refrained from designating these territories as occupied Jordanian or occupied Egyptian territory, presumably since the majority of states, including the Arab states, had not recognized the West Bank as Jordanian territory and Egypt had not even claimed sovereignty over the Gaza Strip.

From 1967 till 1976 the UN General Assembly resolved the dilemma by referring to occupied "Arab" territories and often simply as "occupied territories." From 1976 onward, the increased political clout of the PLO at the UN led to a change. A 1976 UN General Assembly resolution referred to "the right of the Arab states and peoples whose territories are under Israeli occupation". From 1977 the reference becomes "Palestinian and other Arab territories."

No justice.  Not legal analysis.  Political clout.  Ideology.

Other matters are what the Court did and did not say about the Green Line, Jerusalem and the status of the body known as the Palestinian Authority.

As I was informed, the ICJ did not provide a ruling on the status of the territory. The Court does apply the rules of belligerent occupation but without any rendering any opinion on the status of the territories. Yes, the court’s opinion that Israel has no claim to the land is stated far more directly in para.114-122. In any event, while the Court is rendering its opinion, it is not making a ruling on anything. Israel was not a party to the proceedings, which were, in any event, advisory, as the title to the case states. The Court gave its advice to the General Assembly on its opinion. It is entitled to its opinion, and Israel is entitled to its own opinion. As expressed to me - "Bottom line, the claim that the ICJ gave a ruling is flat out not true."

As Rothenberg and Bell have noted, “The UN General Assembly (GA) resolution asking the International Court of Justice (ICJ) for an advisory opinion is actually a request for an endorsement of an already-stated political opinion of the GA. The ICJ lacks jurisdiction over the case because the GA has dictated the desired result. The court is not authorized to make endorsements of the GA’s political opinions dressed in legal garb.” (See: Laurence E. Rothenberg and Abraham Bell, “Israel’s Anti-Terror Fence: The World Court Case” (2004) Jerusalem Viewpoints.


I was assisted by material in Jerusalem Viewpoints, No. 535 28 Elul 5765 / 2 October 2005, The ICJ Opinion on the Separation Barrier: Designating the Entire West Bank as "Palestinian Territory" by Robbie Sabel

and NGO-Monitor Analysis, October 4, 2003 as well as Gerald Steinberg's article.


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