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JPost.com » Opinion » In their own...


The International Court of Justice advisory opinion against Israel's security fence has been harshly criticized. It lacks credibility; disregards the wider context of the conflict; ignores Palestinian terrorism; denies Israel's right of self-defense; and its history of the conflict is "unbalanced."

And that's just from the ICJ judges themselves.
Despite the UN General Assembly's overwhelming approval of the ICJ opinion last week, the separate opinions of the judges reveal a far more complex picture. Only the judge from the United States, Thomas Buergenthal, voted against the advisory opinion, yet the British, Dutch and Japanese judges all expressed serious reservations.

Judge Buergenthal minced no words in his dissenting opinion. He wrote that Palestinian terrorist attacks "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."

The British judge, Rosalyn Higgins, was equally blunt about the lack of context: "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. In fact, it never does so."
Elsewhere Judge Higgins called the court's history of the Arab-Israeli conflict "neither balanced nor satisfactory."

She criticized the attempt to link this case with the Namibia case that condemned apartheid in South Africa, as did the Dutch and Japanese judges.
Judge Higgins was clearly exasperated by the court's ludicrous conclusion that Israel has no right of defense against Palestinian terrorists: "I fail to understand the Court's view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory – Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable.

"This is formalism of an unevenhanded sort."
Judging by the strength of her objections, it is surprising that she did not vote against the opinion.

THE TWO Arab judges were not satisfied with depriving Israel of its right to self-defense. The Jordanian judge, Awn Shawkat Al Khasawneh, attacked the road map, the only peace plan accepted by Israelis, Palestinians and the Quartet mediators. His legal opinion was that the road map's "mutual and reciprocal obligations" no longer exist.

What are the primary Palestinian obligations under the road map? Ending terrorism. Reforming the political process. Ending corruption.
The opinion of the Egyptian judge, Nabil Elaraby, best exemplified how this court did not let facts get in the way of its opinion. He wrote that Security Council resolution 242 "called for the withdrawal of Israeli armed forces from the territories occupied in the conflict."
In fact, resolution 242 calls for Israeli withdrawal "from territories" captured in the 1967 Six Day War, not "from the territories" nor "from all territories."

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