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Australia takes a brave stand for human rights in the Middle East

By David Knoll - posted Friday, 23 July 2004


In voting against the adoption of the Advisory Opinion of the International Court of Justice in The Hague (ICJ) declaring Israel’s separation barrier illegal, the Australian Government was one of only six nations to take a brave stand for human rights at the General Assembly on 21 July 2004.  Foreign Minister Alexander Downer said Australia supports Israel's construction of the separation fence but it should not cross into occupied territories.

A careful analysis of the judgment gives support to the Australian government’s decision.

Buried in the majority judgment is an acceptance, without any analysis, of the undoubtedly incorrect proposition that encouraging voluntary settlement by Jews in the occupied territories was a deportation of people into those territories contrary to Article 49 of the Fourth Geneva Convention.  That the Geneva Conventions apply is however an unexceptional conclusion.  However, the Court’s application of it upholds a racial exclusion of Jews, and flies in the face of international efforts to overcome racial discrimination in all its forms.

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Article 49 was directed against the heinous practice of the Nazi regime of forcibly transporting populations of which it wished to rid itself into or out of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labour or for other inhumane purposes. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding their Nazi occupant's metropolitan territory of Jews - of making it, in Nazi terms, judenrein.

Ironically, while the Palestinians demand a right for any Palestinian Arab to live in the Jewish State, they want to exclude Jews from the right to live in the new Palestinian State.  They want a Palestine that is judenrein.

The ICJ has perhaps unwittingly but more likely very recklessly utilised Article 49 try to enforce the very racist exclusion that Article 49 was designed to prevent.

The ICJ was asked by the UN General Assembly to provide a non-binding advisory opinion on "the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory". The ICJ was required to assume that the location of the barrier was in territory that Israel occupied, that the territory was properly Palestinian territory and that the barrier, 95 per cent of which is not a wall, was a wall. 

The ICJ, when previously called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded "to appraise the relative strength of the opposing claims to sovereignty"  The ICJ used to accept that title to territory is based on a claim not of absolute but only of relative validity. Applying that principle,  no other state has a legal claim equal to that of Israel to these territories  under the unconditional cease-fire agreement of 1967.

Thus, Israel's relative superiority of title would need to be balanced with the claims of the Palestinians. The ICJ did no balancing of these rights, and did not even refer to its own decision in the Minquires and Echrehos case. 

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The Court went so far as to simply assume that all territory acquired by Israel could not be Israeli territory, and declared that it saw no need to inquire into the "precise prior status of those territories".

As the late Julius Stone, pointed out in his treatise Israel and Palestine: Assault on the Law of Nations (Johns Hopkins Univ Press 1981):  Israel's territorial rights after 1967 are best seen by contrasting them with Jordan's lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948.  Jordan invaded in 1948 illegally, and so Jordan never acquired any right to stay and govern the West Bank, as she did from 1948 until 1967.  Jordan attacked Israel across the 1967 border during the Six Day War, and Israel took the West Bank in the course of repelling that attack.

International law forbids acquisition by unlawful force, but not where, as in the case of Israel's self-defence in 1967, the entry on the territory was lawful. The ICJ Advisory Opinion simply ignored this history and these basic legal propositions.
It has also never been made clear why the Court should single out Israel's actions. The UN has not referred the dispute between India and Pakistan over Kashmir or the conflict between Greece and Turkey over Cyprus or any of the dozens of other international border disputes.

India, Saudi Arabia, and Turkey voted to refer the Israeli fence to the ICJ even though each has built their own barriers. India is just completing a 460-mile barrier in Kashmir to halt infiltrations supported by Pakistan; Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to halt smuggling of weaponry; and Turkey built a barrier in the southern province of Alexandretta, which was formerly in Syria and is an area that Syria claims as its own. All of these borders are subject to dispute.

The ICJ decision placed much emphasis on the right of the Palestinians to self-determination, and decided that Israel was required to accord rights under international treaties to the Palestinians, even while their claim to statehood remained nascent.

However, the ICJ also decided that Israel could not rely on the doctrine of self-defence to justify the security barrier because the threats of force that the security barrier was designed to counteract were not "imputable to a foreign State". The right of self-defence says the majority of the ICJ is limited to self-defence in the case of armed attack "by one state against another state". The majority took the view that Israel could not rely on the right of self-defence against persistent acts of terrorism purveyed by a non-State. As Dr Leanne Piggott pointed out this conclusion has no support in the UN Charter, and has the effect of denying nations the right to defend themselves against al Qa’ida.

Moreover, while deciding that only actions by states could give rise to a right of self-defence, it decided that non-states (in this case, the same non-state) had territorial rights just like any sovereign state.  Thus the Palestinians are given rights without responsibility, hardly a fair approach.

There is a patent double standard in the majority judgement.  The Palestinians are accorded rights without a responsibility to stop the terror that emanates from within their midst, and Israel is accorded responsibility for Palestinian self-determination, without the right to defend her civilians against suicide/homicide bombings.

Judge Rosalyn Higgins, the British Judge who was not prepared to uphold the route of the security barrier, expressly concluded that the majority was wrong to decide that self-defence is available only when an armed attack is made by a State. The Judge said in her book: Problems and the Process of International Law: "Common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself".

Under Article 51 of the UN Charter, as it had been interpreted prior to the 9 July 2004 decision of the ICJ, a nation had an inherent right to preserve its existence and to defend itself from any armed attack. If that is right, then the building of a security barrier, which is not of itself a use of force to counteract an illegal use of force, must be legally permitted. Not so now, says the ICJ.

While agreeing with the majority's answer to the question placed before the Court, Judge Higgins criticised the framing of the question. She ruled that the very formulation of the question precluded consideration of the historical and legal context. Judge Higgins, however, supported the decision in terms that would have found favour with the Israeli Supreme Court: "While the wall does seem to have resulted in a diminution on attacks on Israeli civilians, the necessity and proportionality for the particular route selected, with its attendant hardships for Palestinians uninvolved in these attacks, has not been explained."

On the self-defence issue, the dissenting declaration of Judge Thomas Buergenthal, the American Judge, is even more powerful. He reminded his judicial colleagues that: "the Security Council has made clear that ‘international terrorism constitutes a threat to international peace and security’ while ‘reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)’ (Security Council resolution 1373 (2001))."

Judge Buergenthal ruled that any judgment about whether the security barrier would be a legitimate exercise of the right of self-defence required that: "all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court's formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case."

And as Judge Buergenthal correctly pointed out: "the Court fails to address any facts or evidence specifically rebutting Israel's claim of military exigencies or requirements of national security."

But one should not be surprised.  Much as the United Nations has ceased to be a credible participant in resolving the conflict between Jew and Arab in the Middle East, so too its judicial organ, the ICJ, has proven itself incapable of dealing fairly with that conflict.  It is fairly safe to doubt that any other nation will ever face a negation of the right of self-preservation against unremitting terrorism.  Yet, that is what the ICJ has sought to deny to Israel.

Not unexpectedly, Australia’s commitment to a fair go informed its brave decision to vote against the adoption of such double standards.

"Israel must find ways of defending itself against terrorists," Foreign Affairs Minister Alexander Downer told reporters. "And it isn't reasonable to tell the Israelis that they can't erect a security barrier to protect the people of Israel from suicide-homicide bombers," he said.

"We believe that taking this matter of the security barrier to the International Court of Justice was the wrong decision," Downer said.

Intriguingly that was the position of some 20 other Western democratic nations until yesterday. Those were the nations, including European nations, which asked the ICJ to decline to hear the case.

The Australian government in particular had presciently submitted to the ICJ that the very giving of an advisory opinion - as the ICJ now has done - would have a negative effect on the prospects for peace.

That the ICJ has done damage to the cause of peace is easily tested from the reaction of various foreign policy doves.  For example, Israel's leftist daily Haaretz commented on 11 July 2004:

It is difficult to accept the omission of Palestinian terrorism by the court and the murky reference to "violence" against Israelis, whose perpetrators appear to be anonymous. In its fervor to present the Palestinians as innocent victims of the occupation the court ignores the suicide attacks and other terrorist activities. Herein lies the main difference between the decision at The Hague and the ruling of the High Court of Justice on the fence. The latter recognised the security necessity of the fence and accepted the government's approach that its construction was meant to protect the citizens and not annex territory.

And one of the architects of the Oslo Accords, now Opposition leader Shimon Peres said that the ICJ "ignored the fact that the right to stay alive is a basic human right."

In ignoring the human rights of Israeli civilians the ICJ has not advanced the cause of peace, and has taken the vital agenda of human rights backwards.

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About the Author

David Knoll is a Barrister and Immediate Past President, NSW Jewish Board of Deputies.

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