Sunday, February 21, 2010

The Right to Self-Defence. Part II


by Eli E. Hertz


2nd part of 2


ICJ Fault Interposition of Security Council Resolutions

Resolutions 1368,12 137313 (September 2001) and Resolution 137714 (November 2001) leave no room to question Israel’s right to defend itself against systematic and sustained Palestinian terrorist attacks launched since September 2000 – an onslaught per capita, equivalent to 17 September 11th attacks.15


With regard to terrorism, Resolution 1368 clarifies and 1373 reconfirms in a broader form that the Security Council:


Reaffirms the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in Resolution 1368 (2001),


“Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.”

The UN term “by all means” clearly includes a passive, non-lethal physical barrier to impede the movement of such perpetrators, in addition to more forceful responses.

Resolution 1377, passed two months later:


Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century,


Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed” [italics by author].


Terrorist attacks that blow up and destroy public buses, religious celebrations such as a Passover seder and bat mitzvah, young people at cafes and discos, families at supermarkets and restaurants, and that murder youth at boarding schools, school outings, and families in their homes and on the road, clearly fall within the confines of this definition.


After all has been said and done, how is it that nowhere in the opinion does the ICJ weigh Israel’s security threat or even mention terrorism as a factor in the case? The ICJ did not even have to depend on Israeli sources. There is, for instance, a well-documented 170-page Human Rights Watch report on suicide bombings against Israelis since September 2000 – Erased in a Moment: Suicide Bombing Attacks Against Israel Civilians – available ‘in the public domain’ at the click of a computer mouse. The report concluded: “The scale and systematic nature of these [E.H., terror] attacks in 2001 and 2002 meet the definition of a crime against humanity.”


Security Council Resolution 1368, passed the day after the September 11th attack, clearly specified who was accountable for such a terrorist act and called for:


 Bring[ing] to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable” [italics by author].


Security Council Resolution 1456 – adopted in January 2003 – further clarified:

“Any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned, especially when they indiscriminately target or injure civilians”16[italics by author].


Again, the International Court of Justice sees no relevance in the definition of terrorism and culpability set forth in Resolution 1456, despite the fact that Israel has been the target of aggression with 80 percent of the Israelis killed being non-combatants, with women and girls accounting for 31 percent of the fatal casualties, including 51 American citizens and a score of foreign laborers. 17


ICJ Ignores Relevant Bilateral Treaties, Including the Oslo Accords.

In paragraph 77 of the ICJ opinion, ten years of Palestinian autonomy marked by broken promises to recognize Israel by abolishing anti-Israel clauses in the Palestinian National Covenant and to replace denunciation of terrorism with negotiation, is reduced by the ICJ to one sentence:


“A number of agreements have been signed since 1993 between Israel and the Palestine Liberation Organization imposing various obligations on each party.”  


ICJ Fault Interpretation of the Content of the Oslo Accords

The ICJ claiming: “Those agreements inter alia required Israel to transfer to Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil administration.”


In fact, this is a doctored interpretation: Had the members of the ICJ read the Accords, the Bench would have found that Israel only recognized the PLO as the representative of the Palestinian people in the exchange of letters between both sides:


“In response to your [Arafat] letter of September 9 1993, I [Yitzhak Rabin, Prime Minister of Israel] wish to inform you that, in light of the PLO commitments included in your letter, the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and commence negotiations with the PLO within the Middle East peace process.”18


Israel never recognized the claim that the autonomy to be granted to Palestinian Arabs pertained to ‘Occupied Palestinian Territories.’ In fact, at no point in the Accords is the West Bank or Gaza labeled ‘occupied territory.’ The ICJ simply fabricated this and lamely concludes:


“Such transfers have taken place, but, as a result of subsequent events, they remained partial and limited.”


This abridged sentence sanitizes the history of the Oslo peace process, and doesn’t so much as hint at what “subsequent events” disrupted the peace process – events that have taken by that time the lives of 1366 Israeli victims of terrorism, mostly civilians.19

In short, a corrupt logic holds that Israel is solely in charge in a said area, but it is forbidden to take any effective actions in that given area.


The ICJ blithely argues with no reference to international law:


“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. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.”


The ICJ’s baseless denial of Israel’s right to act under Resolution 1373 is particularly grave. Resolution 1373 was adopted by the Security Council under Chapter VII of the UN Charter (“Threats to Peace, Breaches of the Peace and Acts of Aggression”) that invests the Security Council with the power to issue stringent resolutions requiring all nations to comply with the terms set forth in Resolution 1373, citing:


“the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts” [italics by author].  


The ICJ lacks the authority and power over the Security Council to adopt, amend or alter any and all United Nations resolutions or to exclude Israel, a Member State of the UN, from its rights and obligations under Resolution 1373.


The ICJ’s position pretends that a decade of Palestinian autonomy never existed and Palestinians have no margin of control whatsoever over their lives. The threats from suicide bombers and other terrorist acts are magically transformed into an ‘internal problem,’ so that the Security Council Resolutions passed after September 11th, which allow countries to compromise the sovereignty of other polities to combat terrorism, become inapplicable. Elsewhere in the opinion the ICJ denies Israel the right to take anti-terrorism measures anywhere beyond the Green Line because the same territory ‘belongs’ to an entity called ‘Palestine.’


Even the British judge on the Bench [Today the President of the Court], Rosalyn Higgins, felt compelled to note in a separate opinion that:


Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable.”20


Yet, this and numerous other reservations did not prevent Higgins from voting in favor of adopting the opinion as written.


As far as the ICJ is concerned, Palestinian society lacks any semblance of social organization or self-rule, either on a local or national level that can be held accountable for terrorism. Yet, at the same time, this same Court holds that Palestinians are such a sustainable entity as to deserve immediate self-determination.


The ICJ patently ignores the other clauses in Oslo II21which gives the Palestinian Authority full responsibility for Gaza, Jericho and seven major Palestinian cities on the West Bank, including internal security and public order, a responsibility it abrogated by using control of the civil machinery in 450 towns throughout the West Bank to incite the population, including children. It also included turning densely populated areas under full Palestinian control, such as Ramallah and Jenin, into bomb-making factories and staging areas for suicide bombers.


Human Rights Watch – a non-governmental organization (NGO) – is far more thorough in its report on suicide bombings. It doesn’t gloss over Palestinian commitments (and complicity) or hide behind the Palestinian Authority’s non-state status. It has the courage to say:


“Although it is not a sovereign state, the Palestinian Authority has explicit security and legal obligations set out in the Oslo Accords, an umbrella term for the series of agreements negotiated between the government of Israel and the PLO from 1993 to 1996. The PA obligations to maintain security and public order were set out in articles XII to XV of the 1995 Interim Agreement on the West Bank and Gaza Strip. These responsibilities were elaborated further in Annex I of the interim agreement, which specifies that the PA will bring to justice those accused of perpetrating attacks against Israeli civilians. According to article II (3) (c) of the annex, the PA will ‘apprehend, investigate and prosecute perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement.’”22


The ICJ bases its ‘conclusion’ on General Assembly Resolution 58/163 that “reaffirms the right of the Palestinian people … to their independent State of Palestine.” 23 The General Assembly, of course, has no authorization to ‘hand out’ polities any more than the ICJ has the right to give this bogus right a legal ‘stamp of approval’ because neither body has actual legislative or executive powers.


Under the Law of Nations, rights go hand-in-hand with responsibilities. Entitlement is irrevocably tied to accountability. The entire opinion penned by the International Court of Justice speaks time and again of Palestinian rights, but not once about Palestinian responsibilities. If Palestinians are unable to behave in a manner in keeping with the most fundamental principles of the law of nations – attacking their neighbors as opposed to peaceful negotiation of differences – then surely Israel has the right to defend such an onslaught of its national security. But, alas, the entire issue of terrorism is considered immaterial to the security barrier question, which the ICJ brands a political ploy that merely grabs Palestinian land and abridges Palestinian rights.


Report of the UN High-Level Panel on Threats, Challenges and Change

On December 2 2004, the UN Secretary-General released a report entitled A more secure world: Our shared responsibility.24


This report, more than one year in the making, acknowledges the global threats of terrorism, and clearly contradicts the ICJ’s Advisory Opinion on some of the core issues regarding terrorism and self-defence, stating that the:


“Biggest security threats we face now, and in the decades ahead, go far beyond States waging aggressive war. They extend to … terrorism. … The threats are from non-State actors [E.H., such as the Palestinian Arabs] as well as States [E.H., such as Syria, Saudi Arabia, Iran], and to human security as well as State security” [italics by author].


The report continues to challenge the Court assertion that Resolution 1373 is not applicable to Israel [E.H., as the court did without reference to law, or other supportive source] by stating:


“Security Council resolution 1373 (2001) imposed uniform, mandatory counter-terrorist obligations on all States …” [italics by author].


It proceeds to explain that the response to the use of force by a non-State has been inadequate:


“159. The norms governing the use of force by non-State actors have not kept pace with those pertaining to States. … Legally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome Statutes. Legal scholars know this. … The United Nations must achieve the same degree of normative strength concerning non-State use of force as it has concerning State use of force.” And that “There is nothing in the fact of occupation that justifies the targeting and killing of civilians [italics by author].

“161. … Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all.”


Self-Defence Invoked Against “All Perpetrators”

UN General Assembly and Security Council Resolutions, including the International Convention for the Suppression of Terrorist Bombings25, call for specific actions to be taken by all States and underscore repeatedly that terrorism must be fought by all parties, by all means, at all times, by whomever and against all perpetrators. None of these requirements are cited by the ICJ, neither in its discussion of Article 51 and the right of Israel to self-defence, nor in any other similar context within the ICJ’s opinion.


ICJ: Israelis Have to Face Deadly Acts of Violence, and Lack the Right for Self-Defence

In paragraph 141 of the ICJ Opinion, the Court concludes that:

“The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population” [italics the author].


The Court’s use of the expression has to face rather than ‘faces’ [deadly acts], has the ring of a ‘court order.’ The Court doesn’t condemn the attacks; instead it ‘sentences’ Israel to a form of cruel and unusual punishment.


The Court recognizes Israel’s predicaments, while being careful not to use the “T” word (terrorism) or bring itself to classify Palestinian’s acts as “crimes against humanity,”26for to do so would imply that Israel’s plight comes under the umbrella of Resolutions and International Conventions safeguarding universal human rights.


The Court that in paragraph 141 suggests that Israel “has the right, and indeed the duty, to respond in order to protect the life of its citizens” is the same Court that in paragraph 142 leaves Israel powerless; denies it the right for self-defence and rules against building a non-lethal security barrier that saves lives, in favor of Palestinian inconvenience and Palestinian terrorism.  



Eli E. Hertz

Copyright - Original materials copyright (c) Eli E. Hertz




1 Palestine is a geographical area, not a nationality or a country.

2 For the text of the February 9 1999 resolution “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory,” see: (11124)

3 See Associated Press report “More Than One Million Rwandans Killed in 1990’s,” The New York Times, February 16 2002 at: (10731)

4 See International status of South-West Africa. Advisory Opinion of 11 July 1950 at: (10954)

5 Professor, Judge Stephen M. Schwebel, The Legal Effect of Resolutions and Codes of Conduct of the United Nations in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of the ICJ.

6 See UN General Assembly Resolution 3314 (XXIX). (10495)

7 Israel’s Enemies Fail to Label Israel the Aggressor. Draft resolutions attempted to brand Israel as aggressor and an illegal occupier as a result of the 1967 Six-Day War, were all defeated by either the UN General Assembly or the Security Council: A/L.519, 19 June 1967, submitted by the Union of Soviet Socialist Republics. “Israel, in gross violation of the Charter of the United Nations and the universally accepted principles of international law, has committed a premeditated and previously prepared aggression against the United Arab Republic, Syria and Jordan …” A/L. 521, 26 June 1967, submitted by Albania. “Resolutely condemns the Government of Israel for its armed aggression against the United Arab Republic, the Syrian Arab Republic and Jordan, and for the continuance of the aggression by keeping under its occupation parts of the territory of these countries;” A/L. 522/REV.3*, 3 July 1967, submitted by: Afghanistan, Burundi, Cambodia, Ceylon, Congo (Brazzaville),Cyprus, Guinea, India, Indonesia, Malaysia, Mali, Pakistan, Senegal, Somalia, United Republic of Tanzania, Yugoslavia and Zambia. ”Calls upon Israel to withdraw immediately all its forces to the positions they held prior to 5 June 1967.” A/L.523/Rev.1, 4 July 1967, submitted by Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Trinidad and Tobago and Venezuela. Israel to withdraw all its forces from all the territories occupied by it as a result of the recent conflict;”

8 See “Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the united nations” at: (11488)

9 Professor, Judge Schwebel in “What Weight to Conquest?” in Justice in International Law, Cambridge University Press, 1994.

10 Professor, Judge Sir Elihu Lauterpacht, Jerusalem and the Holy Places, Pamphlet No. 19 (London, Anglo-Israel Association, 1968).

11 52/164 International Convention for the Suppression of Terrorist Bombings. 15 December 1997. Adopted without a vote.

12 UN Security Council Resolution 1368 (2001). See: (10574)

13 UN Security Council 1373 (2001) September 28 2001. (10838)

14 UN Security Council Resolution 1377 (2001) November 12 2001. (10837)

15 Between September 1993 (the signing of the Oslo Accords) and February 2003 (prior to completion of the first leg of the fence) more than 1,004 Israelis lost their lives to Palestinian terrorists.

16 UN Security Council Resolution 1456 (2003), [1/20/2003]. (10843)

17 “Shin Bet report: 1,017 Israelis killed in intifada,” Haaretz, September 27 2004. This report also cites 70% of the fatalities (1,017 persons) and 82% of the wounded (5,598 persons) were civilians during four years of violence (September 2000-September 2004).

18 PLO-Israel Letters of Mutual Recognition. Exchange of Letters between PLO Chairman Yasser Arafat & Israeli Prime Minister Yitzhak Rabin. September 9 1993. See: (10420)

19As of December 3 2004, and since September 1993, 1,366 Jews have been murdered by Palestinian’s terror. For an updated listing by name see:

20 See Judge Higgins at:

21 The Israeli-Palestinian Interim Agreement on the West Bank And the Gaza Strip, Washington, D.C. September 28 1995. Full text see: (10944)

22 HUMAN RIGHTS WATCH. Erased In A Moment: Suicide Bombing Attacks Against Israeli Civilians, October 2002. Obligations of the Palestinian Authority and Armed Palestinian Groups, at: (11262)

23 UN General Assembly - 58/163. A/RES/58/163. 77th plenary meeting. December 22 2003. The right of the Palestinian people to self-determination. See: (11319)

24 UN General Assembly Fifty-Ninth Session, 2 December 2004. (11550)

25 Adopted without a vote, December 15 1997. See: (10899)

26 See “Element of Crimes” at the Rome Statue of the International Criminal Court, at (11456)  


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