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The Core Legal Deceptions of Israel’s Opponents

1. The Framework of Deceit

Legally framed attacks on Israel by critics and enemies feature prominently in the international mass media with propaganda hostile to Israel. Repeated by political leaders, commentators and at every opportunity by the Palestinians, their claims have become more or less standard ‘truisms’:

Yet all this has been almost without public challenge by Israel’s hasbara. This has created the impression that Israel has no adequate response to the accusations and that it is guilty as accused. As a result, the allegations have been widely and uncritically accepted as established truth.

A ‘key feature’ of these accusations is that they are conducted in a very peculiar way. The dice are loaded against Israel by a major deception.

The Core Deception is that these allegations rely entirely on unresolved legal interpretations of international law. Yet they are misrepresented to appear as if they were settled legal certainties rather than contentious and undecided opinions. This ploy has been highly successful in enlisting widespread but unwarranted public and political support against Israel’s legitimacy.
An honest legal approach would require the disclosure that this is not the true position because there are no legal determinations on these issues. Therefore, in the absence of legal verdicts, the presumption of legal certainty by Israel’s adversaries is really a deception to present assertions as legal fact. Endless repetition does not make it true, but it has been extremely effective politically.

As well as being deceptive, this pretense is essentially wishful thinking. It is really a political view of what Israel’s critics think a legal verdict ought to be. But to admit that this view remained conjectural and uncertain pending definitive legal rulings would greatly weaken its propaganda force. It would expose it as a political attack masquerading as legal certainty in order to provide itself with the impression of legal gravitas.

Faulty appeal to experts

Rather than undermine their own case by accepting this, Israel’s enemies attempt to overcome and disguise the absence of legal verdicts by securing support from legal experts. What is never stated is that the views of these experts are themselves speculative opinions of law and thus are not legally decisive or final.

In any case, it is quite normal that differing legal views exist and compete. Thus, other experts reach quite different conclusions. These are also speculative legal interpretations. Consequently, those hostile to Israel feel compelled to seek further support by invoking various higher authorities such as the United Nations.

Although legally weak, this strategy has proved to be strong politically. It is weak because the UN does not possess the legal authority to make law. Nor can it issue legal determinations. Instead, it must itself obey the law. In reality, its opinions and activities reflect the concerns and political interests of the member states. Thus, the weight of the Arab and Muslim lobby of 56 member states in the UN is a major factor driving its hostility to Israel.

In a further attempt to strengthen the case against Israel, the claim is made that that the International Court of Justice corroborates the legal case against Israel. This would seem to be a more promising route for the critics of Israel as the International Court of Justice is legally competent to provide definitive rulings on such issues.

Yet the International Court of Justice website of the Cases determined by the Court reveals that since 1947, when the UN established the International Court of Justice to adjudicate on disputes between states, there has only been one case involving Israel. For the legal critics of Israel, the bad news is that the subject of that case was a non-related airline dispute with Bulgaria in the 1950s.

Faulty appeal to the ICJ Advisory Opinion

Yet another effort to provide legal legitimacy for the case against Israel by claiming support from the International Court of Justice Advisory Opinion of 2004 on Israel’s Separation Barrier – the ‘Wall’.

As shown by its title, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the formal subject of the Advisory Opinion was the ‘wall’ – or Security Barrier. But the impact and use of the Advisory Opinion has been far wider and more damaging to Israel than the issue of the wall/barrier alone.

The Advisory Opinion repeatedly states that the West Bank was occupied by Israel, that it is Palestinian territory, that the Green Line is its border and the Jewish communities inside the Green Line are consequently illegal. It buttressed its arguments by claims that:

  • Israel did not have the right to self-defense from attacks from the occupied West Bank (see sections The Denial of Israel’s Right to Self- Defense and The re-legitimization of Israel’s right of self-defense);
  • Palestinian self-determination was prevented by Israel’s occupation (see section Preventing Palestinian self-determination?);
  • That the wall was an obstacle to Palestinian self-determination and a violation Palestinian human rights (see section Humanitarian Issues – What Intifada?).

The Advisory Opinion is misrepresented on all these issues as if its opinions were established legal facts or that the Advisory Opinion had established these claims as legal rulings. In fact, this is impossible, as the Advisory Opinion is just that – an opinion. It is an opinion meant for the UN General Assembly. It is not an equivalent to an International Court of Justice Case determination.

Therefore, there is no legal obligation on anyone, including the General Assembly, to agree with its opinions, to accept them, to be bound by them or to enforce them. This is made clear by the Advisory Opinion itself:

The Court’s reply is only of an advisory character: as such, it has no binding force.
(Advisory Opinion, para 47)

In-built bias against Israel

Further, the Advisory Opinion exhibited an alarming and hardly hidden bias against Israel. This inbuilt bias was demonstrated by a systematic disregard of factors that legally favored Israel. As a counterpoint to this, the Advisory Opinion displayed a similar tendency to ignore factors legally unfavorable to the Palestinians. This resulted in a supposed analysis that was skewed by a series of evasions of both fact and legality. A few examples will illustrate this:

1. In its account of the recommendation of the UN General Assembly Resolution 181 in 1947 that Mandatory Palestine be partitioned into an Arab and a Jewish state, the Advisory Opinion failed to say that the Jewish community in Mandatory Palestine accepted partition plan.

2. By contrast, the Advisory Opinion inserted an uncharacteristic phrase to explain that the Arabs rejected the proposal, contending that it was unbalanced (para 71). By not stating what was unbalanced about the GA proposal, this hardly qualifies as a real explanation – still less as an analysis. Instead, it functions to moderate or excuse the Arab rejection.

3. Also not mentioned was the real reason for the Arab rejection of the UN Partition plan: the total hostility to the existence of a Jewish state.

4. Further, in its account of the aftermath of UNGA Resolution 181, the analysis maintained that:

Israel proclaimed its independence on the strength of the General Assembly resolution; armed conflict then broke out between Israel and number of Arab States …
(para 71)

Leaving aside that Israel did not proclaim its independence on the strength of the GA recommendation, this omitted that the conflict broke out by the invasion of the new state by five Arab armies and troops from two other Arab states in a clear violation of international law.

5. The same reluctance to give credit to the Jewish side was also revealed in the amazing failure of the Advisory Opinion analysis to disclose that the purpose of the Palestinian Mandate of the League of Nations was to establish a National Jewish Home.

6. Likewise, the Advisory Opinion also disregarded the extensive Jewish settlement rights over the territory of mandatory Palestine, which included the West Bank.

7. Following the Arab invasion and war of 1948-49, the Advisory Opinion neglected to say that Jordan occupied the West Bank and that this lacked any legal basis. Nor was any mention made of the policy of killing or expelling all Jews from the Jordanian occupied West Bank and the destruction of all synagogues.

8. Likewise, the Jordanian attack on Israel in 1967 that led to the Israeli seizure of the West Bank in legal self-defense was disregarded.

9. In the aftermath of the 1967 war, the Advisory Opinion also failed to refer to the decision known as the 3-No’s taken by the Arab states in Khartoum: no peace with Israel, no recognition of Israel and no negotiations with Israel.

10. Given its opinion that the West Bank was occupied by Israel, and its understanding that the Arab view of GA Resolution 181 was that it was unbalanced, the Advisory Opinion showed no similar understanding or balance in failing to even hint at the existence of rights of an occupying power.

11. Contrary to the Advisory Opinion claim of Palestinian acceptance of Israel, the Palestinian National Charter calling for the elimination of Israel was not reformed. Likewise, all the Palestinian factions, militias and leaders deny Jewish national rights and refuse to accept Israel as a Jewish state.

12. The extensive agreements in the Oslo Accords for a division of authority on the West Bank prior to final status negotiations and the implications in both law and behavior were ignored.

13. Incredibly, the Advisory Opinion omitted to examine or even mention the mass violence of the intifada launched in 2000 by Arafat. Likewise, it made no assessment of the security and public order dangers posed by the intifada which was the immediate background to the construction of the wall.

14. By its spurious denial that Israel could construct the wall under its rights of self-defense in Article 51 of the UN Charter, the Advisory Opinion simply disregarded a host of Regulations and UNSC resolutions, which confirmed those rights.

15. Despite these and other omissions, the Advisory Opinion found time and space to imply further Israeli misdeeds in a discourse on the need to preserve access to the Holy Places. Not surprisingly, it made no mention of the fact that access was not endangered by Israel but preserved. By contrast, when the West Bank was under Jordanian occupation, Jewish rights of access had been systematically denied.

16. Further, the Advisory Opinion managed to garble or evade all the key legal issues. As a result, it failed to demonstrate a single one of its key claims. How it failed will be shown in the sections below.

2. The failed claim that the West Bank is occupied territory

The title of the Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory shows that the ostensible purpose of the Advisory Opinion was to provide an assessment of the legality of ‘a wall’. It also shows that from the very start that it assumed as given that the West Bank was occupied and Palestinian. To provide a legal basis for this view, a crucial legal question needed an answer: is West Bank occupied territory?

The Advisory Opinion began its answer by stating that:

In the 1967 armed conflict, Israeli forces occupied all the territories which had constituted Palestine under the British Mandate (including those known as the West Bank, lying to the east of the Green Line).
(para 73)

This is an astounding declaration. Normally, the claim that all of Mandatory Palestine was occupied by Israel, not only the West Bank, is reserved for Arab and Muslim states and others who are hostile to the existence of Israel. No legal argument or evidence of any kind was offered by the Advisory Opinion to justify its claim.

Further, the claim was made before the Advisory Opinion had established the legal meaning of the term ‘occupation’. In other words, by assuming occupation it prejudged what it needed to prove. This pattern was repeated throughout.

What is occupation?

Any competent examination of an accusation of theft would initially need to investigate if the property seized from Person 1 did in fact belong to Person 1. It would also need to establish that the accused, Person 2, did not own the property and had indeed taken it. This is basic. In practice, other alternatives may also need to be considered. For example, there may be a possibility that another person, Person 3, was the real owner.

Instead of establishing any of these basic issues, the Advisory Opinion obscured them with a misleading quotation from the accepted definition of ‘occupation’ in The Hague Regulations, 1907. The Advisory Opinion quoted the regulations as follows:

Territory is considered occupied when it is actually placed under the control of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
(Advisory Opinion para 78. Article 42, The Hague Regulations, 1907)

Commonly quoted, this is an entirely inadequate presentation of The Hague Regulations. It is inadequate because it omits to make clear that occupation does not simply involve territory in general, but the seizure by the military forces of one state of the territory of another state. However, the words quoted by the Advisory Opinion do not say this. They only refer to territory in general, not to the territory of another state.

This would have been clear if the Advisory Opinion had correctly situated article 42 in its context of the purpose of The Hague Regulations, which was to limit and regulate wars between states. Failing that, two problems arise.

The first is that the use of the word ‘territory’ as quoted, without specifying where sovereignty of the territory was located, means that its compass could well include military operations of an army within its own territory. Local inhabitants may well perceive these as hostile. Illustrative examples would include the ‘occupation’ of Northern Ireland by British military forces in the recent past and the current ‘occupation’ of parts of eastern Ukraine by Ukrainian military forces.

Closely related to this, the second reason why the use of the word ‘territory’ as quoted by the Advisory Opinion is misleading is that it can produce a legally absurd result. In the event of a state recapturing its own territory that had been occupied by another state, it too could be accused of occupation.

In sum, neither of these would be categorized as ‘occupation’ in the legal sense of The Hague Regulations. The reason is simple; interstate conflict is the core issue of the Regulations. Without the forces of one state occupying territory over which another state is sovereign there is no occupation.

This means that any legal characterization of occupation requires that the owner of the territory, the sovereign power, must be correctly identified. In fact, the next article of The Hague Regulations, not mentioned by the Advisory Opinion, goes some way towards clarifying this:

The authority of the legitimate power (my emphasis, JD) having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
(article 43, The Hague Regulations, 1907)

Elsewhere, the Regulations make the contrast between the occupant and the legitimate Government of the occupied territory (article 48). In short, central to the definition of occupation is the act whereby one state occupies the territory of another state, which is the legitimate power.

By not quoting this correctly, the essential meaning of occupation is obscured. This results in a critical evasion by the Advisory Opinion; it enables it to avoid the central questions of territorial ownership and legitimate authority. That is, it hides what would otherwise be the clear and obligatory legal task in a territorial dispute of checking and establishing sovereignty.

The broken promise of the Advisory Opinion

At one point, the text of the Advisory Opinion suggested that such an investigation would be its initial procedure:

the Court will first make a brief analysis of the status of the territory concerned.
(para 69).

This seems clear and direct enough. But there are three problems with it. The first is that the Advisory Opinion does not provide the promised analysis. As a result, none of the above issues related to property ownership/sovereignty are addressed.

The second problem is that the beginning of its promised analysis occurred almost halfway through the document. By that point, the West Bank had already been repeatedly referred to as Occupied Palestinian Territory.

Thirdly, in contradiction to its statement that it would make a brief analysis of the status of the territory, it subsequently denied that any such analysis was necessary:

The Court accordingly finds that the Convention (Fourth Geneva Convention, JD) is applicable to 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 (my emphasis, JD).
(Para 101).

As well as containing the entirely unsupported declaration that the area east of the Green Line constituted Palestinian territories, the problem with this is that it is an argument in a circle.

Without any discussion, argument, evidence of treaty or overriding legal determination with which to ascertain who owned the property, the Advisory Opinion simply declared that it was really owned by the Palestinians but occupied by Israel. Based on this assumed conclusion, the Advisory Opinion decided that the Fourth Geneva Convention rules for occupied territories applied and therefore that an enquiry to ascertain the ownership of the property would not be necessary!

Unfortunately, to describe a territory as occupied regardless of its sovereign status is to make nonsense of The Hague Regulations. Occupation has no meaning unless sovereignty belongs to a state other than the occupying power. In the same way, to describe an object as stolen is meaningless unless it refers to something seized from its legitimate owner.

In sum, The Hague Regulations were quoted in a way that proved nothing about occupation. Further, by not identifying the legitimate power that exercised legal ownership or sovereignty over the territory, the Advisory Opinion failed to demonstrate its first and key legal point – that Israel occupied the West Bank. Furthermore, by refusing to inquire into where sovereign title lay, it rejected the means to prove it. Instead, it merely assumed from the outset what it needed to prove. As a result, the task of identifying the location of West Bank sovereignty remains.

This failure by the Advisory Opinion is disguised by the typical method outlined in Section 1 above whereby quotations galore are provided from the opinions and interpretations of various organizations and individual experts as if they were legally established determinations. For example, the United Nations and International Committee of the Red Cross are quoted to demonstrate the ‘occupied’ status of the West Bank and the applicability of the Fourth Geneva Convention (paras 97 and 98). The Advisory Opinion also makes an appeal to recognize and respect the special position of the views of the ICRC and its interpretations (para 97).

Naturally, there is nothing wrong with quoting such bodies and experts. Understanding their deliberations may well be instructive in terms of law as well as for their political conclusions and practical proposals. But by focusing entirely on their opinions and assuming their legal competence and accuracy, the Advisory Opinion omitted to mention that none of the bodies or individuals quoted were able to make legal determinations – which is why the issue of the wall was placed before the International Court of Justice for its advice in the first place.

Furthermore, this Advisory Opinion on the wall was the first occasion that the International Court of Justice had been asked by the UN to provide legal advice on the Arab-Israeli conflict. In other words, no previous legal advice or judgment on the matter was available to guide or bind it. Therefore, there was no legal reason for the Advisory Opinion to treat the earlier political decisions or opinions of any other body as if they were established legal rulings when they were not. In fact, the legality of those decisions and opinions needed to be tested and established.

Thus, by its combination of failing to determine ownership of the territory and relying on legally untested opinions, the Advisory Opinion fell at its first hurdle of establishing occupation.

Regarding its second hurdle, its declaration of Palestinian ownership or sovereignty over the West Bank, it did not so much fall at the hurdle as fail to reach it; no evidence or legal argument of any kind was produced to support its contention.

3. The failed claim that the West Bank is Palestinian territory

As shown by the preceding, in order to establish occupation it is first crucial to establish the identity of the legitimate power holding sovereignty over the territory concerned. Therefore, to pursue the questions that the Advisory Opinion preferred to avoid, the rival candidates for this ownership need to be assessed. There are only three possibilities:

  • Jordan,
  • Israel,
  • Palestinians.

As Israel seized the area from Jordan in the 6-Day War of 1967, it would seem obvious that Jordan would be a prime candidate for consideration as sovereign owner of the territory. To establish this it would be necessary to show that Jordan had been the legitimate power prior to the capture of the territory by Israel. Had there been a credible legal claim of Jordanian ownership, the Advisory Opinion could easily have drawn attention to it. Yet the Advisory Opinion did not attempt to determine this. Why not?

Obviously, to have asked the question would have forced a declaration that following the invasion of Israel by the Arab armies in 1948, the West Bank was occupied by Jordan until the 6-Day War of 1967. This would have made it virtually impossible to avoid acknowledgment of the fact that the Jordanian occupation had no legal basis. Rather than state this, the Jordanian occupation was never mentioned by the Advisory Opinion.

By this remarkable omission, the need to examine the legal status of the territory seized by Israel from Jordan in 1967 was avoided. As a result, having made no effort to establish sovereignty, the Advisory Opinion also avoided the conclusion that the territory was never the property of Person 1 (Jordan) from whom it was allegedly stolen by Person 2 (Israel).

Where is West Bank sovereignty?

Naturally, such a conclusion would have obliged an Advisory Opinion inquiry into the real ownership of the property. In other words, if the territory did not belong to Person 1 (Jordan), who was the real owner and legitimate power? Having eliminated Jordan, was there a possibility that it belonged to the accused, Person 2 (Israel)? Alternatively, did the property belong to Person 3 (the Palestinians)? Failing to ask or answer the first question, the Advisory Opinion also failed to ask or answer the questions that followed.

If it had done so, it would have found that Israel had by far the best claim of any state to the territory. Two evidences for this are:

  • the decision of the League of Nations, July 1922 via its Mandate for Palestine to establish a Jewish National Home;
  • no other state had any legal claim.

In fact, this is a very powerful combination. If there had been another state with a legal claim, the Advisory Opinion would presumably have drawn attention to it and compared it to Israel’s claim derived from the Palestinian Mandate. Instead, it remained silent on both issues.

This silence is revealing. We know that the Advisory Opinion was familiar with the Palestinian Mandate because it was referred to several times (for example, paras 70, 78). In fact, following the First World War, the League of Nations established several Mandates in Asia and Africa as well as the Middle East. These were in territories that the League of Nations judged to be not yet ready for independence. However, by placing them under the guidance of another state as trustee, they were to be guided towards independence.

Under British trusteeship, the Mandate for Palestine legally established Jewish national and settlement rights. The Jewish national rights so established were the express purpose of the Mandate. Specifically encompassed were settlement rights on state and other non-privately owned land (unless purchased from the owner) throughout the territory of Mandatory Palestine. State and other non-private land constituted by far the greater part of the territory. Therefore, this was a very wide settlement right.

As well as excluding these rights from its analysis, the Advisory Opinion also declined to clarify the geographic extent of Mandatory Palestine where Jews had those rights. Instead, it says this:

The territorial boundaries of the Mandate for Palestine were laid down by various instruments, in particular on the eastern border by a British memorandum of 16 September 1922 and an Anglo-Transjordan Treaty of 20 February 1928.
(para 70)

The most noticeable aspect of this is that the location of the eastern border set by the British is missing.

In fact, in 16 September 1922, the League of Nations approved a British Memorandum to divide the areas on either side of the river Jordan into separate administrations. This established Transjordan to the east of the river and the rump of Palestine to the west. By this measure, Transjordan was effectively exempted from the provisions of the Mandate regarding a Jewish National Home and Jewish rights of settlement.

Consequently, by means of the very same instrument referred to by the Advisory Opinion, but which it neglected to quote, this confirms that the territory designated by the Palestinian Mandate for the National Jewish Home included the area that later became known as the West Bank. As this was exactly the area of concern to the Advisory Opinion, it might be thought that it was duty-bound to incorporate this into its analysis. Instead, like the other Jewish rights in the Mandate, it was ignored.

In other words, the Advisory Opinion text reveals a serious bias with a series of legally crucial omissions:

  • the real meaning of ‘occupation’ in The Hague Regulations was not provided;
  • there was no analysis of the sovereign status of the West Bank;
  • no mention was made of the illegal Jordanian occupation of the West Bank from 1949-67 and the absence of Jordanian sovereignty over the territory;
  • the purpose of the Palestinian Mandate to establish Jewish national and settlement rights throughout Mandatory Palestine was ignored;
  • there was no disclosure that the area of Mandatory Palestine included the West Bank.

It is hard to believe – impossible to believe – that the Advisory Opinion judges were unaware of these factors. Further, if they had legal doubts or objections to the Jewish rights under the Mandate, they should have discussed and legally dismissed them. Instead, they suppressed them.

Ignoring the Mandate for Palestine of the League of Nations

Clearly, to have included Jewish rights under the Mandate within the scope of its analysis would have called into question the Advisory Opinion assumption that the West Bank was Occupied Palestinian Territory. At a minimum, this would have opened the issue for debate around competing claims. Avoiding this debate, the Advisory Opinion side-stepped any question or challenge to the assumption it adopted from the outset that the West Bank was both occupied and Palestinian.

Obviously, in political terms, there is a powerful body of opinion that Israel occupies Palestinian territory. However, the Advisory Opinion is supposed to be concerned with legalities and not political opinions. Yet it provided no discussion, no arguments and no evidence for its assumption that the West Bank belonged to Person 3 (the Palestinians). Likewise, it provided no comparison of other possibilities or contending claims from Person 2 (Israel). In fact, there was not so much as a hint that other possibilities even existed.

By turning a blind-eye to the purpose of the Mandate and blanking-out the issue of Jordanian occupation, the core issue of ownership and territorial sovereignty inherent in The Hague Regulations definition of occupation was evaded. Further, Jewish legal rights in the West Bank were air-brushed out of the picture. As a result, the repeated declarations by the Advisory Opinion of Israeli occupation of the territory were unsound on both logical and legal grounds.

Political opinion or international law?

In sum, with regard to the two key areas where it should be strongest, the claims of Israeli occupation and Palestinian proprietorship, the Advisory Opinion failed to confirm its view. In reality, it scarcely tried. As shown by the title, Legal Consequences of the Construction of a Wall on Occupied Palestinian Territory, both positions were assumed from the outset when the General Assembly initiated the Advisory Opinion from the International Court of Justice.

However, there is a further problem with this approach. The Advisory Opinion was the first and to date only legal advice sought by the UN from the International Court of Justice on the Arab/Palestinian-Israeli conflict. Therefore, the legal basis for the characterization of the territories as occupied and Palestinian had not been established. Opinions within the UN are essentially political. Neither the UNSC nor the GA are authorized by the UN Charter to make legal rulings. Nor is the ICRC. It was for this reason that the International Court of Justice was created by the UN in 1947 to adjudicate disputes between states.

Consequently, opinions of the UN cannot be legal determinations. Instead, they themselves require legal confirmation. Hence, the UNGA called for an International Court of Justice Advisory Opinion on the Israel’s Wall/Security Barrier for which it was not itself either authorized or equipped to provide.

Therefore, earlier pronouncements by UN bodies could not be relied upon by the Advisory Opinion as if they were statements of law. It is thus a rudimentary flaw that the entire text of the Advisory Opinion is permeated with the political assumptions which it failed to address or resolve on a legal basis.

4. The failed claim that the Green Line was a border

In addition to the uncritical adoption of political assumptions without legal evidence, the Advisory Opinion also failed to query or confirm that the extent of Palestinian territory was synonymous with the area inside the ‘Green-Line’ – the West Bank. In fact, as before, it simply neglected to ask the relevant question. It merely asserted that the West Bank was a legally distinct territorial entity belonging to the Palestinians.

This is remarkable. It means that the Advisory Opinion paid no attention to the various agreements and treaties of the parties. For example, in a different context the Advisory Opinion quoted (para 72) the Jordanian-Israeli Armistice Agreement, 1949. This stated clearly that :

The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either party relating thereto.
(Article VI para 9)

In sum, by means of a treaty between the two states, it had been explicitly agreed that the Green-Line was not a border or a territorial settlement. Instead, the single purpose of the Green Line was to denote the agreed positions of the respective military forces at the close of military conflict in 1949.

Further, the Green Line corresponded to no previous administrative, economic or ethnic division. Nor did it relate to any geographic, historic or religious division. Nor did it correspond to the Partition line recommended by UNGAR 181 in 1947. It was purely as agreed by the two parties: a military demarcation line between military forces. It had no other legal implication.

Therefore, if the Advisory Opinion had legal grounds for believing that the Green Line was the border of what it regarded as Palestinian territory it should have presented them. Instead, it made no attempt to do so. Nor did it attempt to identify who else other than the parties concerned had decided or could decide that the Green Line was or would be a border. The reason is simple: there has been no such decision.

A second such omission is the Jordanian-Israeli Peace Treaty, 1994, which was also quoted by the Advisory Opinion (para 76). In 1988, Jordan had abandoned its claim to the West Bank. The peace treaty confirmed this and replaced the armistice agreement, which had created the Green Line. Regarding the West Bank, this expressed a similar view to the Armistice Agreement towards

the statement that the boundary between Jordan and Israel had been agreed:
without prejudice to the status of any territories that came under Israeli military government control in 1967.
(Article 3, para 2)

As a result, the sole legal purpose of the Green Line as a military demarcation line was removed and it had no further legal existence. The Advisory Opinion made no contrary argument. As before, it merely ignored the problem that this presented for its unsupported position.

A third example is the reference in the Advisory Opinion text to agreements between Israel and the PLO signed since 1993 (para 77). The chief of these are the Oslo Accords. Yet again in contradiction to the insistence of the Advisory Opinion, The Declaration of Principles (Oslo I), 1993 made no claim that the West Bank was occupied, or that it was Palestinian or that the Green-Line constituted or should constitute its sovereign boundary.

Oslo was intended to prepare the way for final status negotiations, which would include issues such as Jewish ‘settlements’ on the West Bank and a permanent peace agreement. Until then, in similar terms to the Jordan-Israel armistice and peace agreements, it stated that:

The two parties (Israel and the PLO – JD) agree that the outcome of the permanent status negotiations should not be prejudiced or pre-empted by agreements reached for the interim period.
(Article V, para 4)

Fourthly, The Israeli-Palestinian Interim Agreement (Oslo II), 1995 also made no reference to occupation or the claim that the West Bank constituted Palestinian territory or that the Green-Line was its boundary. Instead, it repeated essentially the same qualifications:

Nothing in this Agreement shall prejudice or pre-empt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP (Declaration of Principles, Oslo I, JD). Neither Party shall be deemed, by virtue of having entered this Agreement, to have renounced or waived any of its existing rights, claims or positions.
(Article XXXI clause 6)

In other words, various treaties and agreements between the parties exist that differ from the assumptions of the Advisory Opinion. None has been legally challenged. Therefore, at the very least, if the Advisory Opinion believed that these treaties and agreements were illegal, wrong, doubtful, irrelevant or that some other body had somehow over-ruled them, it should have demonstrated its case and produced evidence to support its view.

Undoubtedly, the Advisory Opinion was within its rights to expound a differing legal view of West Bank sovereignty and borders if it felt such views were warranted. However, the Advisory Opinion provided neither discussion nor legal reasons to support its views.

5. The failed claim that Israel must withdraw from the West Bank

Based on its assumption of Israeli occupation of the West Bank, the Advisory Opinion analysis quotes the UN Security Council Resolution 242 of November 1967. This emphasized:

the inadmissibility of acquisition of territory by war and called for the ’’Withdrawal of Israel armed forces from territories occupied in the recent conflict” and “Termination of all claims or states of belligerence”
(para 74)

The analysis did not include the rest of the resolution. Unlike the implication of the Advisory Opinion statement, this shows that Israel was not required to withdraw unilaterally. This is clear for three reasons.

The first is that the Resolution linked any Israeli withdrawal to a package of measures. From where the Advisory Opinion quotation ends, these included:

Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

Other measures listed in the resolution included:

guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;
(UN Security Council Resolution 242, 1967)

In short, this required recognition and acceptance of Israel’s right to secure and recognized borders. However, what the Advisory Opinion statement also omitted was that two months earlier in Khartoum, the Arab League Summit had passed its 3-No’s Resolution affirming that there would be:

no peace with Israel, no recognition of Israel, no negotiations with it
(Arab League Summit Resolution, Khartoum 1967, para 3)

But as the 3-No’s demonstrate, no Arab State had made peace with Israel or accepted its right to exist within secure and recognized boundaries free from threats or acts of force. Nor would the Arab states guarantee its territorial inviolability and political independence. In these circumstances, contrary to the misleading formulation of the Advisory Opinion, no withdrawal was demanded or suggested by UNSCR 242.

Secondly, in similar fashion, the resolution did not specify which territories were occupied. Israel had no legal claim to the captured Egyptian Sinai. Therefore, its designation as occupied territory was uncontroversial. Consequently, following successful negotiations with Egypt, Israel withdrew its forces from the Sinai in accordance with resolution 242.

Several factors made this possible. The aforesaid lack of Israeli territorial claims to Sinai and the absence of Egyptian claims to any part of Israel were crucial. Further, as requested by UNSCR 242, Egypt and Israel reached a peace agreement with agreed borders. The agreement included security measures to limit Egyptian military forces in the Sinai. This effectively protected Israel by the provision of approximately 200 kilometers of buffer between the respective military forces (see, The New Egypt and the Clash of Civilizations).

Additionally, by leaving undefined which were the occupied territories, resolution 242 did not specify the West Bank. Therefore, interpreting the reference to the inadmissibility of acquiring territory to include the West Bank was a further example of an assumption that needed to be proved.

The third reason that Israel was not required to withdraw unilaterally from the West Bank is that the resolution 242 was not legally binding. It was a Chapter VI resolution whereby the Security Council made its opinion and recommended course of action clear, and not a Chapter VII resolution, which would have been legally binding.
Finally, neither Oslo I, the Declaration of Principles (1993) nor Oslo II, the Interim Agreement (1995), called for or agreed to such a withdrawal.

6. The Denial of Israel’s Right to Self- Defense

The Advisory Opinion wanted to have its cake and eat it on the question of Israel’s right to self-defense against attacks from occupied territory. That is, it both refused and accepted the right. Its apparent acceptance, which was never explained and merely token, will be discussed below in Section 9 Humanitarian Issues – What Intifada?

By contrast, the rejection of Israel’s right of self-defense was its dominant view. Its attempted justification began with a quotation from Article 51 of the UN Charter:

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, until the Security Council has taken measures necessary to maintain international peace and security.

Without explanation, the Advisory Opinion inserted its interpretation of this as follows:

Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State (my emphasis, JD).
(para 139)

However, as can be seen, this distinction between non-specified armed attacks in the wording of Article 51, and the more limited specification of armed attacks by another state in the Advisory Opinion interpretation, suffers from the obvious snag that Article 51 contains no reference to an armed attack by one state against another state. As a result, not everyone has accepted this interpretation.

In fact, as with The Hague Regulations, the entire context and meaning of the Charter and its articles was the question of ensuring international peace between states. This was the express intention and overriding purpose. In other words, the context makes clear that the meaning of Article 51 is one of military attack by one state against another as stated by the Advisory Opinion.

However, this clarification of the meaning of Article 51 by the Advisory Opinion produces two problems. Firstly, it may be thought that by situating Article 51 in its interstate context, if indeed that was its reasoning, the Advisory Opinion demonstrated evidence of ‘nuance’ or good sense. If so, where was the same interstate context or ‘nuance’ when it quoted Article 42 of the Hague Regulations in its attempt to define ‘occupation’?

As outlined previously, ignoring the interstate context of The Hague Regulations had huge consequences. It enabled the Advisory Opinion to avoid the real definition of occupation as being rooted in the military forces of one state occupying the territory of another state. This enabled it to steer clear of the critical issue of sovereignty and to proceed with its assumption of Israeli occupation without query or challenge.

The second problem, which has a direct impact on its rejection of Israel’s right to self-defense under Article 51, is that this apparently rigorous interpretation was immediately relaxed by the introduction of a new exception to that interpretation.

Advisory Opinion extension of meaning of Article 51

In this extended interpretation, justification for self-defense is now said to include an armed attack that comes from the territory of another state when initiated by a non-state ‘actor’, as distinct from an attack by another state. This was the response of United Nations Security Council Resolutions 1368 and 1373 to the attacks on the Twin Towers and Pentagon by Al-Qaeda, based in Afghanistan (Advisory Opinion paras 138, 139).

No longer strictly interpreted to apply purely to attacks by another state, this new extension to the meaning of Article 51 appears to have rapidly acquired the status of ‘customary international law’. However, this new consensus produces an obvious question: if attacks from outside the territory of a state could be met by military force why would this not apply to Israel’s defense against attacks in and from what the Advisory Opinion refers to as Occupied Palestinian Territory?

The Advisory Opinion reasoned against this as follows:

Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying construction of the wall originates from within, and not outside, that territory.

As a result:

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.
(para 139)

The meaning of this is clear. Although the Advisory Opinion considered that the West Bank was outside Israel, the newly extended scope of Article 51 was nevertheless inapplicable because attacks on Israel were from inside territory controlled by Israel. In other words, it could not be considered that the attacks originated from outside in the same sense as the attacks on the Twin Towers.

This is the sum total of the Advisory Opinion argument for the rejection of Israel’s right of self-defense. It points, of course, to a real difference. But having found it, the Advisory Opinion neither asks nor answers the question: why is it a legally significant difference? Naturally enough, all situations are different with their individual features and circumstances. Therefore, analysis is required to assess whether these differences are sufficient to justify differing legal treatments. This is entirely absent from the Advisory Opinion, but is addressed below in section 7, The re-legitimization of Israel’s right of self-defense.

The non-inherent right of self-defense?

The rejection of Israel’s right to self-defense appears to have contributed to some consternation at the UN General Assembly. This was not from any concern about Israel; the condemnation of the wall by the Advisory Opinion was expected and generally welcomed. However, the formulation of the condemnation and possible implications created a certain unease. According to a recent book from the ICRC, there was a sense that:

the right of States to defend their citizens might not have been adequately reflected in the Advisory Opinion.
(Occupation and Other forms of Administration of Foreign Territory, ICRC 2012, p 136)

As a result, the passing of the GA resolution that accepted the Advisory Opinion was eased by the last-minute addition of a clause to its preamble. This said:

Reaffirming that all states have the right and duty to take actions in conformity with international law and international humanitarian law to counter deadly acts of violence against their civilian population in order to protect the lives of their citizens.
(As above, p 136, UNGA Resolution 10/15 preamble, 2004)

This left completely unaddressed the international location, source or purpose of attacks to be countered. As a result, although it was sufficient to calm immediate political concerns at the GA, its inclusion did nothing to clarify the legal aspects of the reinterpretation of Article 51.

In particular, the Advisory Opinion conclusion against Israel gave the impression that all occupying powers would be denied the right of self-defence against attacks from occupied territories. This appeared unacceptable if it encompassed what might be termed permissible occupations as distinct from those deemed impermissible. For example, the occupation of Kuwait by Saddam Hussein in 1990 was impermissible whereas the occupation of Germany after the collapse of the Nazis was permissible.

The example of Kuwait is particularly clear-cut because the Iraqi invasion and occupation was an act of unprovoked aggression and thus an unquestioned breach of the prohibition of the use of military force by one state against another. The only permitted exceptions to this rule in the UN Charter are military actions in self-defense under Article 51 or under a Chapter VII resolution by the Security Council to authorize military force in order to preserve international peace and security.

Legal and illegal: a significant legal difference?

Given the polar legal difference between these two cases, the different legal treatment is clear and justified. As a result, the illegal conquest and occupation of Kuwait by Iraq merited demands for unconditional withdrawal.

Therefore, if Israel’s occupation of the West Bank were illegal, the view of the Advisory Opinion in outlawing its self-defense against attacks from it would at least be understandable. That is, if an occupation were an act of aggression and thus illegal, it defies sense to treat legitimate resistance against an illegal act as if that too were aggression – and thus also illegal. This would be to provide the illegal aggressor with self-defense rights against legal self-defense.

However, no attempt was made to declare that Israel’s occupation was illegal. Presumably, this was because Israel did not initiate an attack on Jordan but counter-attacked following a fierce Jordanian artillery bombardment of civilian areas of Jerusalem. A claim of illegality would thus have been impossible to sustain as the supposed occupation of the West Bank conformed to the first of the two legitimate reasons for the use of military force: the inherent right of self-defense against attack by another state.

As a result, if Israel’s occupation was not illegal, that cannot be the basis for refusing the right to self-defense in Article 51.

The legal rights of occupying powers

Aside from its garbled version of The Hague Regulations, the Advisory Opinion offers no distinct definition of occupation of its own and thus makes no distinction between legal and illegal occupations. It accepts that the standard definition of occupation is provided by The Hague Regulations. This definition is entirely neutral; its concern is the fact of occupation not its legality.

However, this definition provides the occupant with legal rights and duties. The basic reason for this was the assumption by The Hague Regulations that victors in a war would occupy territory of the defeated pending a new peace agreement and perhaps a redrawing of borders. In the interim period prior to any new agreements, the occupation forces are required to behave legally and employ just means according to the rules of war.

This is why the basic rules of occupation are to be found in The Hague Regulations and the Fourth Geneva Convention. Consequently, the rules of The Hague Regulations require that the occupant:

shall take all measures in his power to restore, and ensure, as far as possible, public order and safety,
(The Hague Regulations, article 43)

Clearly, the phrase all measures in his power is strong, although not as strong it appears due to other requirements in the text. Equally clearly, since this formulation in 1907, humanitarian concerns for the treatment of civilian populations in wartime or under occupation have developed extensively. These were the concern of the Fourth Geneva Convention of 1949, which focussed its attention on the legality of the behaviour of the occupying power.

Therefore, the Fourth Geneva Convention set out humanitarian considerations in greater detail than the Hague Regulations. However, the rights of occupiers were not cancelled by humanitarian requirements. As a result, the Fourth Geneva Convention says this:

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, (emphasis added, JD) and likewise of the establishment and lines of communication used by them.
(Fourth Geneva Convention, 1949, Article 64 iii)

As before, it is not credible that the Advisory Opinion was ignorant of this. Yet it made no mention of these rights and duties in relation to the situation faced by Israel. In fact, it would be impossible to know of their existence from the Advisory Opinion text.

UNSCR 1483: a spanner in the Advisory Opinion works

Significantly, the approach of the above quotation is exactly the attitude taken by the UNSC towards the occupation of Iraq by the US and UK in 2003. Although these events were highly controversial, UNSCR 1483 of May 2003, made no reference to the legality or otherwise of the occupation. However, it accepted the fact of occupation. It did this by recognizing:

the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers (emphasis added, JD) under unified command (the “Authority”),
(UNSCR 1483. 22 May 2003)

Additionally, the resolution included the statement:

Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority,
(as above)

This gave the go-ahead for the occupant (the ’Authority‘) along with assistance from other members of the UN to establish order and security. Furthermore, under a specifically stated Chapter VII requirement, the resolution reinforced this with the following appeal:

to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice;
(as above, Chapter VII requirements para 3)

In short, the obligations and rights of the occupants to maintain order and security were recognized and reinforced by a legally binding requirement. Given this legality, an attempt to deny the right of self-defense to occupation forces in their efforts to implement these measures would have been nonsense.

7. The re-legitimization of Israel’s right of self-defense

The Advisory Opinion made no reference to the rights and duties of occupants or to UNSCR 1483. But why not if it viewed Israel as an occupier? In effect, these omissions allowed it to evade the implications of resolution 1483, which contradicted its view of the right to self-defense against attacks from occupied territory.

In fact, resolution 1483 presented two problems for the Advisory Opinion. The first was that it restated the standard rights and duties of occupants found in The Hague Regulations and the Fourth Geneva Convention. The second problem was that these provided the legal basis for the self-defense of an occupier against attacks from territory it occupies. To put it differently, resolution 1483 completely contradicted the position adopted by the Advisory Opinion.

Notwithstanding its references to UNSC resolutions 1368 and 1373 and a host of other UN resolutions, the Advisory Opinion responded to this challenge by ignoring it. However, the Security Council passed resolution 1483 over a year prior to the Advisory Opinion report. Therefore, it seems scarcely believable that the Iinternational Court of Justice judges on the Advisory Opinion could have been unaware of it.

In fact, this is a stunning legal evasion by the Advisory Opinion. It means that if resolution 1483 is accepted as legally sound, as is the case, the opposite view taken by the Advisory Opinion view must be rejected. Alternatively, different legal reasoning is needed if it is to be justified.

Therefore, if the Advisory Opinion view is to be retained, the existence of a legally significant difference between the situations in Iraq and the West Bank must be identified. The question thus becomes, what is this legally significant difference? Yet both the question and the difference are missing from the Advisory Opinion.

In response to a request for its opinion from the General Assembly, the Advisory Opinion was entitled and surely expected, at least formally, to arrive at its own views independently of whatever anyone else thought. Generally, it simply followed without question previous statements on Israel and the West Bank from the Security Council and the General Assembly as if they were statements of law. However, on this question it took a different course by ignoring 1483 without explanation.

Obviously, the polar opposite views of resolution 1483 and the Advisory Opinion is an issue that needs to be resolved in both law and application to Israel and the West Bank. Therefore, a comparison of the two situations is required to identify legally significant differences as well as similarities that would support one of the opposing conclusions or the other.

Legally significant similarities

The key similarity discussed here between Iraq and the West Bank and Israel is that attacks on the forces of occupation were from within territory they controlled (formally or nominally). The second similarity is that neither occupation has been ruled illegal.

The circumstances of the occupation of Iraq created extraordinary controversy. Two of the occupying forces, the US and UK, are permanent members of the Security Council and unlikely to vote for the illegality of their occupation. Therefore, possibly the best that can be claimed is that the war and occupation of Iraq were at least arguably legal. In the event, although intensely disputed, there has been no ruling of illegality.

In the case of Israel, the initial occupation of the West Bank was less controversial because it conformed to one of the two legitimate reasons for the use of military force: the inherent right of self-defense against attack by another state. Doubts about this assessment are essentially ‘political’ and there is no real legal challenge. This is because Israel practically begged Jordan not to become involved in the war of 1967. Israel only countered-attacked when Jordanian launched an artillery bombardment of civilian areas of Jerusalem.

As a result, the assault on Israel by Jordan was a clear violation of international law and the prohibition on aggressive the use of military force by one state against another state. Israel’s counter-attack that resulted in the capture of the West Bank were thus legal self-defense. This was the just cause (Article 51) and just authority (the UN Charter), which established the legal reason why there has been no Chapter VII instruction for the unconditional withdrawal of Israeli forces.

In sum, although disputed, both occupations were arguably legal acts. Each related to one of the two legal uses of force as authorized by the UN Charter: in Iraq a Chapter VII ruling by the Security Council to secure peace and security, and the exercise by Israel of its right to self-defense against Jordanian attack under Article 51.

Legally significant differences

Additionally, there are a number of striking differences between the situations in Iraq and Israel. For example, in Iraq the insurgents who attacked the occupation forces:

  1. did not deny the legitimacy of the states of the occupiers;
  2. did not threaten the existence of those states;
  3. did not have claims against the territory of those states;
  4. did not launch terrorist attacks to murder civilians in those states.

Yet all these were features of the situation of Israel and the West Bank. A further relevant difference is that unlike the West Bank, the US and UK occupiers of Iraq:
did not claim the territory they occupied.

By contrast, all the above apply in the case of Israel. In fact, they add urgency to Israel’s need for self-defense entirely absent from the states that occupied Iraq.
At an absolute minimum, it would be expected that these factors deserved and would receive due consideration from the Advisory Opinion. However, it provided not a trace of such consideration. Nor could it be said in its favour, so to speak, that the insurgents on the West Bank organized attacks against civilian targets in Israel in pursuit of the 2 State Solution and the acceptance of Jewish national rights. In fact, they opposed both.

Therefore, given this context and the denial by the Palestinians of exactly the same right for Israel that they claimed for themselves, two conclusions follow:

  • It is entirely legitimate for Israel to defend itself against attacks generated by this intransigence;
  • Palestinian refusal to accept Israel as a Jewish state, and thus 2-states for 2-peoples, is the driving force that prevents the realization of Palestinian self-determination.

In other words, the legally significant differences add weight to the right of Israel to self-defense rather than detract from it. To put this differently, Israel’s right to self-defense is akin to the justification provided by UNSC resolution 1483 for the forces occupying Iraq to defend themselves – only more so.

UNSC 1511: another spanner in the Advisory Opinion works

Resolution 1483 was passed by the Security Council over a year before the Advisory Opinion. It defies credibility that the Advisory Opinion could have been ignorant of it. For the same reason, it is impossible that the Advisory Opinion was unaware of UNSCR 1511.

Yet UNSCR 1511 was constructed on the basis of resolution 1483 and repeated many of its key points. For example, it restated that terrorism was a threat to international peace and security. Consequently, the resolution contained a Chapter VII section that ruled the necessity for:

all necessary measures to contribute to the maintenance of security and stability in Iraq.
(para 13)

Furthermore, it specifically invoked resolution 1483 to call for:

effective Iraqi police and security forces in maintaining law, order, and security, and combatting terrorism
(para 16)

In sum, resolutions 1483 and 1511 contradicted the conclusion of the Advisory Opinion that self-defense against attacks from occupied territories was impermissible. Further, they reinforced the traditional interpretation of the laws of occupation found in The Hague Regulations and the Fourth Geneva Convention, which established rights and duties for occupants.

As a result, unless a serious legal challenge appears, it is now established that states have a legitimate right of self-defense against the following:

  • attack by another state (article 51 UN Charter);
  • attack from the territory of another state by non-state actors (UNSCR 1368 and 1373);
  • attack from occupied territories (UNSCR 1483 and 1511; The Hague Regulations and Fourth Geneva Convention).

Given the destruction of its central thesis by resolutions 1483 and 1511, it might have been expected that the Advisory Opinion would have abandoned it or argued its case against these resolutions. Its silence therefore appears as an inability to demonstrate the latter and an unwillingness to admit the former.

A third right to self-defense?

At the heart of the issue is that occupation occurs when the territory of one state is seized by another. Otherwise, there is no occupation. Therefore, by definition, attacks on occupying forces from an occupied territory are attacks from outside its territory. As uncontroversially expanded by UNSC resolutions 1368 and 1373 to include attacks from the territory of another state rather than from that state itself, this triggers the right of self-defense under Article 51.

However, as seen earlier, even without this extension of the meaning of Article 51, occupants are entitled to defend themselves under the rules of The Hague Regulations and the Fourth Geneva Convention. The origin of this entitlement in The Hague Regulations preceded by many years the UN Charter and Article 51. Therefore, the question arises whether the entitlement in The Hague Regulations supported by UNSC resolutions 1483 and 1511 is actually a third right of self-defense.

Some commentaries suggest this. For example, the Israeli High Court maintained that in circumstances of occupation there is no need for the right of self-defense under Article 51 because it is already provided by The Hague Regulations and the Fourth Geneva Convention (International Legality of the Security Fence and Sections near Alfei Menashe, 2005. Docket HCJ 7957/04 paragraph 23),

This is true, but only in a manner of speaking. In fact, the UN Charter has legal primacy. Therefore, although arriving later, Article 51 underpins the legitimacy of The Hague Regulations in international law. This means that the rights in resolutions 1483, 1511, The Hague Regulations and the Fourth Geneva Convention, are confirmed in their legality by Article 51.

Discordant legal responsibilities

However, this points to a miss-match between the rights and duties of occupants contained in The Hague Regulations and Fourth Geneva Convention and the aims of UN Charter and Article 51. The accepted definition of occupation in The Hague Regulations is legally neutral. Consequently, the central concern of the Fourth Geneva Convention is the legal and humanitarian behavior of the occupying power (just means – jus in bello) and not the legality or otherwise of the occupation itself (just cause – jus ad bellum).

By contrast, the UN Charter is concerned with the maintenance of international peace. This has resulted in the restriction of the legal use of military force between states to self-defense or a Chapter VII resolution of the UNSC. In short, central to the UN Charter is that military force between states without the support of one of the two permitted reasons is illegal.

Consequently, if territory of a state is captured by an illegal act of aggression then the occupation of that territory is also illegal. The repercussions in international law may be a Chapter VII UNSC resolution demanding unconditional withdrawal of the occupying forces. Further, a practical consequence could be a Chapter VII resolution of the Security Council to mobilize a military force of member states to remove the occupant – as with the Iraqi invasion and occupation of Kuwait.

Double-edged divergence

However, the divergence of purposes of the UN (preventing war) and the Fourth Geneva Convention (humanitarian treatment of civilians in war) created a practical contradiction. This is because the humanitarian motivations of the Fourth Geneva Convention placed certain obligations on an occupying power. These legal obligations (jus in bello) are applicable no matter whether the occupation is legal in itself or not (jus ad bellum).

However, many of these obligations are double-edged. For example, the earlier quotation from the Fourth Geneva Convention that an occupant is required to maintain the orderly government of the territory (article 64 iii) might well be a sound humanitarian concern to protect the safety and economic well-being of the population. Yet in the context of an illegal act of aggression, this obligation effectively assists in stabilizing the situation and thus supports the consolidation of an illegal occupation.

This is overtly the case in the same passage from the Fourth Geneva Convention where the occupant is specifically allowed to ensure the security of the Occupying Power. As a result, this effectively provides rights of self-defense to an illegal actor and thus again assists in the consolidation of an illegal act. The danger is that this rewards rather than deters such acts.

Therefore, it may be that international law would be better served by making the following legally explicit:

  • An occupation from an illegal act of aggression is itself illegal.
  • Such an occupying power is obliged to withdraw unconditionally.
  • Its conduct must accord to humanitarian rules.

The occupant has no right of legal self-defense against legal resistance.

Likewise, with regard to a legal occupation:

  • An occupation due to self-defense or a Chapter VII resolution of the Security Council is legal.
  • The occupying power is obliged to conduct the occupation according to humanitarian rules.
  • The occupying power retains all rights of self-defense.

All this changes, of course, if the ‘occupied’ territory in question actually belongs to the supposed occupier. In this case, the right of self-defense in Article 51 is irrelevant, as a state does not ‘occupy’ its own territory and Article 51 is only applicable to attacks by or from the territory of another state.

8. Preventing Palestinian self-determination

Without dwelling on legal or factual difficulties for its view, the Advisory Opinion pressed ahead with its condemnation of the supposed occupation of the West Bank and construction of the wall, which were said to prevent Palestinian self-determination.

The issue of self-determination was also central to UNSCR 1483, which set out in some detail that the purpose of the occupation of Iraq was to assist the self-determination of its citizens and free them of the murderous and aggressive dictatorship of Saddam Hussein.

By contrast, the view of the Advisory Opinion was that in the Occupied Palestinian Territory of the West Bank, Israel was an obstacle to Palestinian self-determination. This denial of Palestinian self-determination was said to be a great injustice and illegal (for example, paras 88, 149, 155, 159). In fact, this view is widespread. Therefore, from both a legal and political perspective, these accusations need examination.

In a basic sense, all occupations prevent self-determination. By definition, authority lies with the occupant rather than the population of the occupied territory. Therefore, the issue becomes one of the legality for the occupation and its purpose. However, the Advisory Opinion discussed none of this and instead merely asserted Israeli wrongdoing, which it took entirely for granted.

Nor did the Advisory Opinion provide any legal explanation for the priority given to Palestinian self-determination over Jewish rights of self-determination contained in the Mandate for Palestine. The reason for this is simple: as outlined earlier, the Advisory Opinion simply ignored Jewish rights established by the Mandate.

However, to support its case, the Advisory Opinion claimed that Israel’s denial of Palestinian self-determination conflicted with the acknowledgement by Israel of the existence of the ‘Palestinian People’ in the Oslo Accords. It contrasts this to the acceptance of Israel by Yassir Arafat (para 118).

Interestingly, this confirms the Israeli acceptance of Palestinian nationalism. But the implication that Arafat accepted Israel is made without a trace of examination as if it were an established and uncontroversial fact. Instead, it is neither.

The Palestinian National Charter & the destruction of Israel

In reality, Arafat was required by Oslo II to alter the Palestinian National Charter (1968). The intention was that a new Charter would be produced without the passages that called for the destruction of the state whose existence he had just acknowledged. Yet had the Advisory Opinion checked, it would have noted that despite the supposed agreement, there was no sign of the changes or the new version.

In fact, even now, over a decade since the Advisory Opinion and almost 20 years after the supposed Palestinian commitment, the Charter remains unaltered. It can be seen unrevised and without correction, disclaimer or qualifying comment on the Palestinian website of the State of Palestine Permanent Observer Mission to the UN from which these selections were taken:

Article 2: Palestine, with the boundaries it had during the British Mandate, is an indivisible territorial unit.

Article 9: Armed struggle is the only way to liberate Palestine.

Article 15: The liberation of Palestine, from an Arab viewpoint, is a national (qawmi) duty and it attempts to repel the Zionist and imperialist aggression against the Arab homeland, and aims at the elimination of Zionism in Palestine.

Article 19: The partition of Palestine in 1947 and the establishment of the state of Israel are entirely illegal, regardless of the passage of time,

Article 20: The Balfour Declaration, the Palestine Mandate, and everything that has been based on them, are deemed null and void.

Claims of historical or religious ties of Jews with Palestine are incompatible with the facts of history and the conception of what constitutes statehood. Judaism, being a religion, is not an independent nationality.
(http://www.un.int/wcm/content/site/palestine/pid/12362)

In fact, the ‘moderate’ Palestinian factions merely recognized the undoubted fact of Israel’s existence; they never accepted its right to exist as a Jewish state. Further, this refusal was and is accompanied by the denial of Jewish national rights (see, The Israeli Demand that Palestinians Accept Israel as a Jewish State).

Therefore, when the Palestinian leaders say they accept the 2 State Solution, they do not say that this means 2 States for 2 Peoples or an end to the conflict. In fact, they deny both. A further indication is the fictitious Palestinian claim for the right of return to Israel of several million fictitious refugees. This would effectively swamp Israel and undo the failure of the invading Arab armies to conquer Israel in 1948, 1967 and 1973.

The Palestinian National Charter then and now

In the years since the Advisory Opinion, there has been no relaxation of this basic Palestinian position. On innumerable occasions Arafat’s successor, Mahmoud Abbas, the PA President appointed by the PLO, and other Palestinian leaders incessantly repeat these positions. For example, following the recent Arab Summit in Cairo, November 2014, which passed yet another resolution refusing to accept Israel as a Jewish state (see, Abbas Cairo Interview) Abbas said:

We cannot recognize a Jewish state.

There are six million refugees who wish to return, and by the way, I am one of them.
(MEMRI 05 Dec 2014 Special Dispatch5898)

Obviously, these attitudes cut across the principles underpinning the Oslo Accords of reciprocal recognition for a lasting solution. By refusing to accept Israel as a Jewish state and insisting on the return of the fictitious refugees, the Palestinians are effectively declaring in advance that the struggle to undermine the Jewish character of Israel and replace it with their own domination is not over.

Yet the situation is misrepresented by the Advisory Opinion as one of Israeli denial of Palestinian self-determination whereas the reality is exactly the opposite. This misrepresentation ignores:
the acceptance by the Jewish leaders in Mandatory Palestine and the Arab rejection of the GA Resolution 181 of 1947 recommending the Partition of Palestine into an Arab state and a Jewish state; the 3-No’s of the Arab League following the 6-Day War of 1967; the negotiations with and offers from Israeli PM Barak in 2000.

It is impossible that these were not known to the Advisory Opinion; yet all were disregarded without explanation.

Conflicting 2-State Solutions

Aside from UN resolutions, political point-scoring and wishful thinking, there is nothing in reality to demonstrate that the 2-State Solution, in the sense of 2-States for 2-Peoples, ever was remotely acceptable to the Palestinians and the Arab world in general. Nor did the Advisory Opinion make any attempt demonstrate that it was accepted by them.

The Israeli fear is that without Palestinian acceptance of Israel as Jewish state, a Palestinian state based on the West Bank would provide a base for whoever rules it, probably in conjunction with others, for use as a springboard for further attempts to destroy Israel. In other words, instead of an exchange of land-for-peace to end the conflict as promised, it will be an exchange of land for more terror and more war.

This is particularly the case as the heights of the West Bank are adjacent to and overlook the main population and economic centers of Israel. With major transport routes also alongside the West Bank and Ben Gurion airport nearby, these would offer a hostile Palestinian state an abundance of easy targets and present Israel with severe defensive difficulties.

Firstly, the longer border will be far more difficult to control. Secondly, the closer proximity and greater concentration of population and business targets will be much harder to defend. Thirdly, this concentration allows practically no depth for military maneuvering.

This extreme vulnerability means that Israel needs an enormous amount of convincing and reassurance that agreeing to a Palestinian state on the West Bank will be safe. Further, Israeli fears are reinforced by an inherent imbalance in the land-for-peace formula. This is because the proposal is not in reality an exchange of land for peace but essentially an exchange of land for a promise of peace.

Palestinians to blame for lack of own self-determination

With this inbuilt asymmetry, Israel gives up the concrete asset of land in exchange for nothing stronger than a promise rather than for any reciprocal concrete asset. In other words, the exchange would involve a fundamental and high-risk deed on the part of Israel for an imprecise and unreliable promise on the part of the Palestinians. In a future emergency, this Israeli surrender could prove very difficult to reverse. By contrast, it would be relatively easy for the Palestinians to renege on their promise of peace.

This is why Israel requires a great deal of assurance that this will not be the case. As the quotations from UNSCR 242 show, this is precisely what is required for peace. To date, these assurances do not exist. Yet their absence was entirely ignored by the Advisory Opinion.

Consequently, without the reciprocal Palestinian acceptance of Jewish national rights and acceptance of Israel as the state realization of those rights, there is no foundation for a successful, stable and peaceful co-existence of 2-states as the Advisory Opinion and others seem to imagine. This means that without Palestinian acceptance of Israel’s right to exist as a Jewish state it is impossible for Israel to accept a Palestinian state on its border.

In other words, this refusal is the core issue that prevents a solution to the conflict. In fact, it is the driving force of the conflict. Unlike other ‘national liberation movements’, with which they like to be compared, the Palestinians are unique in seeking the destruction of the state of their opponent. Contrary to the assumptions of the Advisory Opinion, this is the rock against which all peace attempts have failed and thus prevents the realization of Palestinian self-determination.

In reality, a Palestinian right of self-determination is one factor among many. It has no overriding legal, moral or practical primacy. Further, Palestinian rejection of Jewish national rights of self-determination, cannot be ignored as if it were irrelevant. Consequently, Palestinian self-determination is not a matter that Israel can or is required to agree to unilaterally. Instead, it is a matter of a mutually acceptable agreement that would necessarily include Arab/Palestinian acceptance of Jewish rights of national self-determination.

The Temporary Nature of Occupation

The consistent refusal of the Palestinians and wider Arab world to accept Jewish national rights of self-determination has prolonged the conflict and remains the key obstacle to a settlement. This has resulted in a long occupation. By contrast The Hague Regulations envisaged that the occupation of the territory of another state would be a temporary matter.

However, there is no set limitation or definition of ‘temporary’; the core issue is not essentially a matter of a clock or calendar but of a process whereby the conflicting parties reach an agreement.
As a result, the temporary nature of occupations envisaged was merely that an unspecified amount of time would be needed by the warring parties to settle the terms of a peace treaty. It was understood that this would include matters such as mutual recognition, future relations and so on, prior to the possible return of occupied territory to the legitimate power based on agreed borders.

In other words, the time involved depended entirely on the parties to the negotiation. As long as there was no negotiated agreement, the occupation continued.
The definition of ‘occupation’ in The Hague Regulations and the right of self-defense in Article 51 are expressed in simple terms. Real situations are generally more complicated. In the West Bank, several points of originality stand out:

  1. The previous legitimate or sovereign power was the Ottoman Empire.
  2. Following the First World War and the break-up of the Ottoman Empire, the Palestinian Mandate of the League of Nations established Jewish national and settlement rights.
  3. Another party (Britain) ruled the territory, supposedly as trustee for those rights.
  4. Following the British ‘resignation’ as trustee and the UN proposal to partition Mandatory Palestine into an Arab State and a Jewish state, a third party (Jordan) conquered, occupied and subsequently relinquished its claim to the area.
  5. Two remaining parties (Israel and the Palestinians) claim the territory and as a result, both the occupation and the territory are disputed.
    The contrast with the apparent simplicity of circumstances envisaged by The Hague Regulations and Article 51 is obvious.

Furthermore, the refusal of the Palestinians to acknowledge the same rights of self-determination for the Jewish state as they claim for themselves means that an agreement to end the conflict is impossible. Therefore, without the peace arrangements envisaged by The Hague Regulations and UNSCR 242, the conflict cannot be concluded.

All this reflects the complications and originality of the conflict that do not easily match the simple picture of The Hague Regulations or Article 51. Inevitably, new circumstances arise which are not envisaged when laws were drafted and agreed. This is, of course, typical. As a result, a more nuanced Advisory Opinion might have concluded that the dominant political views in the General Assembly were hardly unchallengeable truths but simply political positions that failed to reflect the unusual set of circumstances of the conflict.
Instead, the Advisory Opinion once again ignored complications and newly arisen factors that failed to confirm its assumptions.

In fact, complexity and the development of circumstances not originally envisaged was the reason behind the initial distinction accepted by UNSC resolutions 1368 and 1373 between attacks by another state and attacks from the territory of another state. That is, real world experience had introduced a factor not anticipated when Article 51 was drafted.

Further, the assumption behind these resolutions was that the state from which the attacks originated was either unable or unwilling to prevent those attacks. This raises new questions regarding the Palestinian Authority, self-determination and the wall, which are dealt with below.

9. Humanitarian Issues – What Intifada?

The simplicity of the assertion quoted earlier from the Advisory Opinion (section 6, above), that Israel exercises control in the Occupied Palestinian Territory (para 139) hid the developments of the Oslo Accords. These introduced a system of divided-authority on the West Bank as an interim step towards final status negotiations for a permanent settlement of the conflict.

Although an obvious complication to its view of occupation, the Advisory Opinion made no attempt to assess or situate the significance of the Accords into its account. It merely stated that they had agreed to:

transfer to the Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its (that is, Israel’s, JD) military authorities and civil administration.

Nor did the Advisory Opinion specify any of the powers and responsibilities. Instead, it continued:

Such transfers have taken place, but, as a result of subsequent events, they remain partial and limited.
(para 77)

It is difficult not to see these passages as being other than deliberately denuded of any real information in order to be as vague and imprecise as possible. As a result, the real situation is obscured and its legal implications are evaded.

This decision by the Advisory Opinion not to specify the powers and responsibilities transferred to the Palestinians is striking. In fact, it hid a remarkable process. As a direct result of the Oslo II agreement in 1995, the Palestinian Authority became the governing body of over 95% of the Palestinian population in the West Bank and Gaza.

Furthermore, extensive arrangements for Palestinian self-government were agreed which included the economy, planning, water, culture, educational and democratic elections.

Additionally, detailed security arrangements included the following measures:

  1. The formation of a Palestinian police force to control Palestinian security (Articles X, XII, XIII and XIV);
  2. The police force to have a monopoly of the possession of arms (Article XIV);
  3. An agreement to take all measures necessary in order to prevent acts of terrorism (Article XV);
  4. An agreement to abstain from and prevent incitement (Article XXII).

Even if the Advisory Opinion view of occupation were to be accepted, these changes to both the spheres of security and governance by Oslo made the situation far more complicated than the simple picture presented in The Hague Regulations.

At the very least, there was no longer a simple or straightforward match of situation to definition. Therefore, in light of these developments, which were entirely unforeseen by The Hague Regulations, a modified or more nuanced interpretation of occupation would have been warranted. Instead, the Advisory Opinion ignored this new and original situation as if it were non-existent.

Subsequent events – not worth mentioning

As before, one Advisory Opinion evasion led to another. According to the Advisory Opinion quotation above, the full implementation of the Oslo program was prevented by subsequent events. These subsequent events were never specified. In fact, they were the second intifada from 2000 to 2005. This was a sustained attack by means of bombs, shootings, suicide bombers and rockets against civilian targets on buses, in restaurants, discos, hotels and other public places.

As a result, from 2000 to mid-2004, when the Advisory Opinion was published, over 1200 Israelis had been murdered (Haaretz 29 Sept 2005). Thousands were also injured in a murderous and sustained campaign of violence that focused on the deliberate targeting of civilians. In sum, the intifada was the critical factor that prompted Israel to construct the wall.

It would be hard to dispute the impact and relevance of such an intense and extensive campaign of violence. Yet the Advisory Opinion hid from view the origin of the very issue it was supposed to address.

What could explain this astonishing omission other than a one-sided view that lacked any concern for Israeli interests and rights? In this way, the Advisory Opinion made no attempt to situate the wall in its context, which was completely suppressed.

Israeli fatalities in the intifada and US deaths in Vietnam

In fact, the scale of the intifada violence was astounding. In 2005, the population of Israel was almost 7 million. If compared to the UK population of 60 million in 2005, the proportionate number of UK deaths would have been over 10,000.

Compared to the US population of almost 300 million in 2005, the proportionate number of US deaths would have been over 50,000. This compares to the 58,000 US fatalities of the Vietnam War (Wikipedia), which produced a national trauma that lasted years.

In other words, the distortion cause by blanking-out the intifada effectively falsified the context of the wall. It was as if a ‘History of Europe, 1939–1945’ had been written which omitted any mention of the Second World War. Consequently, having seen no intifada, the Advisory Opinion was unable to see any need for the wall.

Instead of taking the real context into account, in a series of long paragraphs Advisory Opinion detailed the construction and route of the wall (paras 79 to 85) and the undoubted unpleasantness and inconvenience caused to many Palestinians. This was to establish that the wall violated International Humanitarian Law.

As a result, the Advisory Opinion concluded that its route:

cannot be justified by military exigencies or by the requirements of national security or public order.
(para 137)

But how could the Advisory Opinion possibly know that? After all, it produced no account of any military exigencies. Nor was there an assessment of national security requirements. Similarly, not a single feature of public order was considered. In sum, by suppressing all reference to the emergency, the Advisory Opinion concluded in a vacuum that there was no need for emergency measures. Consequently, its ‘discussion’ of such measures consisted only of the above quotation to dismiss them.

Likewise, the Advisory Opinion reached its amazing conclusion without any assessment of the human rights difficulties for Palestinians harmed by the wall compared to the non-mentioned human rights difficulties for Israelis harmed by the non-mentioned intifada. Granted the difficulty of comparing unlike qualities, as before the Advisory Opinion opted simply to ignore any consideration for Israel.

Finally, the Advisory Opinion reached its conclusion before its ‘discussion’ and denial of Israel’s right of self-defense under Article 51 of the UN Charter (discussed above in section 6, The Inherent Right to Self-defense). It is only after these judgments that the Advisory Opinion provided its token acceptance Israel’s right to self-defense.

The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right and duty to respond in order to protect the life of its citizens. The measures are bound nonetheless to remain in conformity with applicable international law.
(para 141)

After previously having rejected Israel’s right to self-defense, it is unclear on what legal basis this right was now accepted; no explanation was provided. In any case, the very next paragraph effectively withdrew the right by stating that:

Israel cannot rely on self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall
(Para 142)

However, this judgement of wrongfulness was nothing more than an assertion. It was made entirely without consideration or comparison of necessity, proportionality, military exigency, national security, public order or the scale of the violence of the intifada. Nor was there any comparison with suggested or permissible measures to deal with the emergency. As a result, it appears as if self-defense for Israel was legally permissible as long as it was not exercised.

The PA: a hostile state, an incapable state or a non-state actor?

By ignoring the intifada, the Advisory Opinion also avoided having to take a position on the issue of the legality of Palestinian attacks on civilians under international law. It also enabled it to ignore the violation of the terms of Oslo II. At the same time, by disregarding UNSC resolutions 1483 and 1511, the Advisory Opinion evaded the contradiction to its own view.

Conversely, by not challenging UNSC resolutions 1368 and 1373, the Advisory Opinion had effectively acknowledged an important extension of the right of self-defense under Article 51 against attacks on one state by another state to include attacks from the territory of another state by non-state actors.
This extended interpretation became relevant because the 9/11 attacks originated from the territory of a state that was either incapable or unwilling to prevent it – from Taliban-ruled Afghanistan.

In other words, the core issue of self-defense became the attack itself and not the entity that launches it.

Therefore, in view of Oslo and the Advisory Opinion assumption of occupation, this raises the issue of how to classify the PA and the attacks from the West Bank. The three basic options are that the PA government represented an entity which was:

  • enough of a state to justify self-defense under Article 51 of the UN Charter against attacks launched by it;
  • enough of a state to justify self-defense under resolutions 1368 and 1373 against attacks by non-state actors from its territory but which it was either unwilling or incapable of preventing;
  • not enough of a state for either of the above but instead a non-state actor against which self-defense against attacks from it and/or other non-state actors was warranted under the traditional interpretation of the rights of occupants as in UNSC resolutions 1483, 1511, The Hague Regulations and the Fourth Geneva Convention.

Alternatively, a possible argument could have been that unlike the Iraqi insurgents, the intifada was an entirely justified national liberation struggle for self-determination. As noted earlier, this would have struggled with issues of illegality arising from the sustained and deliberate attacks on civilians by the Palestinian militias. However, by declining to mention these attacks, the Advisory Opinion also declined to make this argument – and thus avoided these legal difficulties.

In fact, Fatah, Hamas, Palestinian Islamic Jihad and the Popular Front for the Liberation of Palestine controlled the militias that were responsible for over 95% of Israeli deaths. All should have been disarmed under the Oslo Accords. This was also not mentioned by the Advisory Opinion. Nor was the fact that none of these organizations fought for an ‘approved cause’, such as the 2-State Solution, but for the termination of Jewish national rights and exclusive Palestinian dominance.

All this was absent from the considerations of the Advisory Opinion.

10. Institutional Anti-Israel Bias

Well before it began its analysis, the Advisory Opinion accepted that the West Bank was Palestinian Territory. In fact, this was its core assumption to which it contributed zero legal evidence or legal reasoning. Consequently, it failed to demonstrate that the West Bank was either occupied or Palestinian or even a territory.

These initial assumptions were never questioned, challenged or legally examined. Nor were the numerous references it made to UN resolutions, which were simply accepted as if they were statements of law.

A foregone conclusion

The chief issue here has not been the wall as such but the legal reasoning used by the Advisory Opinion in establishing its case against Israel. Yet its case was astonishingly poor, shot-through with systematic bias, untested assumptions, omissions, a crude-beyond-belief analysis, crucial absences of legal reasoning and a glaring disregard for facts. Ignoring all arguments in its path, it steamrollered to its foregone conclusion given by its initial brief and accepted by it. In short, the Advisory Opinion report exhibited all the signs of being a political hatchet-job.

But this approach was not inevitable. As the first occasion that a UN body had requested legal advice from the International Court of Justice on the Arab/Palestinian-Israeli conflict, this provided an unprecedented opportunity for the Advisory Opinion to revise the terms it was given by the General Assembly and to establish an unbiased and useful legal guide to the conflict and its possible resolution. As made clear in its text, the Advisory Opinion was quite able to adjust the terms and question given to it by the General Assembly:

In the past, both the Permanent Court and the present Court have observed in some cases that the wording of a request for an advisory opinion did not accurately state the question on which the Court’s opinion was being sought … or, did not correspond to the “true legal question” under consideration.
Consequently, the Court has often been required to broaden, interpret and even reformulate the questions put.
(Advisory Opinion para 38)

Instead, by accepting legally unsubstantiated assumptions of Israeli guilt, the Advisory Opinion demonstrated a complete failure to perform this task. This institutional bias resulted in a strong reluctance to face the originality of Israel’s predicament. For example, in comparison to the simple and uncomplicated presentation of military occupation in The Hague Regulations, the circumstances of the West Bank were unusually complicated:

  1. The previous sovereign power was the Ottoman Empire.
  2. Under the mandate of the League of Nations, Britain had supposedly acted as trustee to ‘tutor’ Mandatory Palestine towards independent Jewish nationhood in the immediate post-Ottoman period.
  3. The Arabs opposed any state other than their own exclusive ownership rights over the whole territory of Mandatory Palestine.
  4. In their attempt to destroy the new Jewish state by force in 1948, Jordan occupied the West Bank.
  5. Jordan subsequently relinquished its claim to the area.
  6. Two remaining parties, Israel and the Palestinians, thus currently claim the same territory; meaning that both the occupation and the territory are disputed.

Reality is thus not a simple reflection of simple definitions. The picture presented by the Advisory Opinion of an Israel with no legal support or rights occupying the sovereign territory of Palestinians with all the legal support and rights, is a total distortion. In fact, it is astonishing how little of the real situation was reflected in the analysis of the Advisory Opinion, which made scarcely any attempt to situate the conflict, or its immediate focus on the wall, into this complicated background.

In other words, in its haste to condemn Israel, it missed what would otherwise have been an opportunity to explore the legal issues in way that would have done justice to the uniqueness of the conflict.

Token discord in the Advisory Opinion?

A more difficult question is how so many apparently qualified, knowledgeable and intelligent judges could have gone along with this hatchet-job. Possibly, they simply shared commonly held beliefs and assumptions of the Palestinian-Israeli conflict. Maybe these were so general and widespread that they were unconscious of them and simply took them for granted? For example, only a minority of the judges remarked on the feebleness of the analysis part of the Advisory Opinion.

One of those unhappy with the supposed analysis was judge Roslyn Higgins (UK). Nor was she satisfied that Article 51 of the UN Charter contained anything to remove Israel’s right to self-defense against attacks that originated from the West Bank. She also questioned the view that the wall necessarily denied Palestinian self-determination. Nevertheless, she voted along with thirteen others in favor of the report. She subsequently became President of the International Court of Justice in 2006.

To his credit, the only judge to vote against acceptance of the report was Judge Buergenthal (USA). By contrast, in his separate statement judge Al-Khasawneh (Jordan) felt the need to express his delight regarding the decision of the Advisory Opinion not to investigate the status of the West Bank prior to its capture by Israel in 1967. Al-Khasawneh subsequently became Prime Minister of Jordan.

Legality chasing reality

This politicization indicates a further problem with international law. The ‘model’ is that the UN, chiefly the Security Council, should act and decide on circumstances in an equitable and even-handed way according to the law. Apart from the difficulty of interpreting old laws in new situations, which inevitably leaves space for bias and state interests to be paramount, it is hardly possible to rely on such aspirations of good faith and intention.

It is frequently the case that the Security Council is not as impartial or disinterested as the model may wish. Instead, geopolitical, economic or ideological interests are primary rather than the letter of the law.

For example, at the end of the Second World War the western allies were certain that the Soviet Union was responsible for the Katyn Massacre of thousands of Poles, uncovered by the Nazis in 1943. Yet during the Nuremburg War Criminal Trials, the western allies saw their interests as best served by not pressing for justice for this slaughter. Nor did they press for justice regarding the mass rape of German women by Soviet soldiers.

Possibly this divergence of reality from model legality also helps to explain how Jordan could be in possession of Occupied Palestinian Territory from 1949 to 1967 without generating masses of resolutions, condemnations or investigations from the UN and International Court of Justice. In a similar way, it might be imagined that during the Jordanian occupation of the West Bank, the following might have attracted enormous international concern:

  • the murder or expulsion of all Jews,
  • the destruction of all synagogues,
  • institution the death penalty for selling land to Jews,
  • establishment of hundreds of new Arab settlements,
  • refusal to allow Jews access to Holy Sites.

Yet although all this took place in an area legally established by the League of Nations and its successor the United Nations, for Jewish national rights and Jewish settlement, protests were decidedly mild.

Likewise, it is notable that international focus on the West Bank wall has been wildly disproportionate compared to barriers built in other disputed or occupied territories, such as by Turkey in Cyprus, Morocco in Western Sahara or India in Kashmir. Possibly the common denominator in these cases is the absence of a lobby similar to the bloc of 56 Arab/Muslim states in the General Assembly, which acts as the chief promoter of institutional hostility to Israel?

This is also amazing in that the practical effects of the wall, which has saved many thousands of Israelis from death or injury at the hands of terrorists, has been accomplished entirely by non-lethal and reversible means. Of course, this was not mentioned by the Advisory Opinion.

International law is not a Holy Book

The Hague Regulations, the UN Charter and the Fourth Geneva Convention are not holy texts. When they were agreed, no-one imagined that international terrorism would become such a major feature or concern for international relations. Nor could such convoluted circumstances as those outlined earlier have been foreseen. However, in reality, it is historically commonplace that new events and future circumstances have produced situations which were not foreseen when laws were written.

These potential developments are an entirely normal feature of legal evolution as law in general is constantly adjusted (developed, renewed, rewritten) to keep pace with developments. The view of the Advisory Opinion in accepting the modification of Article 51 by UNSC resolutions 1368 and 1373 to include armed attacks originating from another state as distinct from attacks by another state is an example.

Given that legal developments of this type are normal and inevitable, a discussion of Israel’s rights of defense against terror attacks from wherever they originated would have been warranted. In a similar way to the extension of the meaning of Article 51 by UNSC resolutions 1368 and 1373, the Advisory Opinion could and should have discussed the acceptance of the right to self-defense from attacks arising in occupied territory elaborated in UNSC resolutions 1483 and 1511. In reality, these restated the traditional rights and duties of The Hague Regulations.

Instead, the Advisory Opinion concealed all reference to these rights and to resolutions 1483 and 1511. This means that its conclusion cannot be considered serious or conclusive, but more in line with a political campaign against Israel.

In any case, to return briefly to the wall, Advisory Opinion objections to particulars of its route could have been dealt with on their merits by adjustments to the route without making the entire structure illegal. But the institutional bias of the Advisory Opinion against Israel proved too much for this simple step – after all, it would have meant providing Israel with some credibility.
As a result, from the point of view of legal development, the Advisory Opinion was so permeated by incompetence and bias that it has had zero impact. Its real function has been its use as a political stick masquerading as a legal ruling by those not appreciative of Israel’s peculiar and dangerous predicament or by those who are fundamentally hostile to Israel.

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