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.
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
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
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."
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
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."
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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