But the ICJ conclusion is faulty. In Clause 139, the ICJ claims that Article 51 of the UN Charter recognizes the existence of a right of self-defense only in the case of armed attack by one State against another”. Strangely, the words “in the case of armed attack by one State against another” are nowhere to be found in article 51.
The advisory is again remiss in ignoring the effectiveness of the ATB. Between September 2000 and July 2003, West Bank terrorists carried out 73 atrocities within Israel, killing 293 people and badly wounding 1950. Between erection of the first segment in August 2003, and June 2004, the number of successful attacks originating in the West Bank dropped to three, all in the first half of 2003, during which 26 civilians were murdered and 76 wounded. Because the portion of the ATB already erected forces terrorists to take more difficult routes, the number of attempted attacks foiled by security forces improved greatly. Dozens of attacks were prevented and several intending perpetrators were captured.
The Israel government announced complete acceptance of the high court ruling and construction has been halted while a less intrusive route is planned, even at the cost of some security.
The ICJ would have noted too, the PA’s tolerance of, and even cooperation with, Hamas, Islamic Jihad and PFLP in gross violation of Article XIV which unambiguously forbids any armed forces in the West Bank and the Gaza Strip other than the Israeli army and the Palestinian Police Force and strictly forbids the possession or manufacture by any other organization of weapons, explosives or any related equipment.
Construction of the ASB becomes even more understandable in view of the PA’s violation of Article XXII which requires the parties to abstain from incitement and ensure that their respective educational systems contribute peace.
It would not be unreasonable to have expected the ICJ to welcome, not only this non-violent ATB, but the fact that by reducing the incidence of terror attacks, the ATB will hopefully minimize, if not avoid the need for violent incursions into PA controlled territory.
“Armed conflict broke out.” Indeed! The statement is equivalent to historians reporting blandly without any explanation “The Twin Towers were destroyed on 9/11”. Not even the most extreme history revisionist denies that Israel accepted the 1947 UN partition resolution; the Arabs rejected it. Immediately Israel declared independence in 1948, the Arab League declared “Holy War”, with the publicly announced intention of driving the Jews into the sea. Lebanon, Jordan, Syria, Egypt and Iraq invaded the newborn state, expecting to destroy it in a matter of weeks. Arab League Secretary, General Azzam Pasha declared “This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades”. The Mufti of Jerusalem, Haj Amin Al Husseini pronounced “I declare a holy war, my Moslem brothers! Murder the Jews! Murder them all!”
In her separate opinion Judge Higgins wrote, “…I find the history as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory”.
“Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until “a just and lasting peace in the Middle East” is achieved. When such a peace is made, Israel is required to withdraw its armed forces “from territories” it occupied during the Six-Day War–not from “the” territories nor from “all” the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from “all” the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the “fragile” and “vulnerable” Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called “secure and recognized” boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.”
The indisputable facts are that prior to 1967, the West Bank and East Jerusalem were not possessed by the Palestinians but were ILLEGALLY occupied by Jordan. Gaza was similarly, ILLEGALLY occupied by Egypt, both countries having illegally invaded the territories in defiance of the 1947 UN Partition Plan. Jordan resolved to annex the West Bank and Jerusalem in 1950 but this attempt at annexation was rejected by the vast majority of the international community, including the Arab states. Only Great Britain and Pakistan recognized this attempt at annexation.
It is relevant to quote former State Department Legal Advisor Stephen Schwebel, who at one time headed the ICJ. In 1970 he wrote: “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. It is a matter of history that Israel only entered the West Bank in self-defense. It is also a matter of record that the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War”.
Contrary to the basic assumption on which the ICJ advisory is based, the unavoidable logical conclusion is that Israel’s presence in the West Bank and Gaza may be justifiable or unjustifiable, wise or unwise, but it certainly is not illegal until such time as a just and lasting peace is achieved. The corollary is that the minor intrusions of the ATB into the West Bank are justifiable in terms of international law, subject to the conditions imposed by the Israel High Court ruling referred to earlier.