Prepared for the
Conference of Presidents of Major American Jewish Organizations

by the Jerusalem Center for Public Affairs
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July 12, 2004

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ICJ Dissent of Judge Thomas Buergenthal (USA) (International Court of Justice)
    Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion, I dissent from its decision to hear the case.
    To reach [a] conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel's legitimate right of self-defense, military necessity, and security needs, given the repeated deadly terrorist attacks in and upon which Israel has been and continues to be subjected, cannot be justified as a matter of law.
    Article 21 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, declares: "The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations."
    Article 51 of the Charter provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations."
    The Court fails to address any facts or evidence specifically rebutting Israel's claim of military exigencies or requirements of national security.

Palestinians Bolstered by New Weaponry (Middle East Newsline)
    The Palestinians have been strengthened by the introduction of new Hizballah-supplied weaponry smuggled from Egypt.
    Israeli military sources said improved anti-tank rocket-propelled grenades and longer-range Kassam-class missiles have arrived over the last few months, either bought, supplied, or developed by Hizballah.
    The Cobra RPG launcher, manufactured by Egypt, is an enhanced version of the Russian RPG-7, which can penetrate most armored combat vehicles.

Anarchy in Nablus - Itai Asher (Maariv-Hebrew, 9 July 04)
    Last week, after IDF soldiers killed a group of terrorist leaders in Nablus, the terror groups declared a three-day general strike in the city.
    As tens of youth armed with clubs patrolled the city and threatened businessmen who failed to close, for the first time they met with resistance.
    According to Lt. Col. Raad Mansour, the IDF's liaison with the Palestinians in Nablus, a doctor who refused to close his clinic was beaten and hospitalized, along with a number of store owners.
    One prominent lawyer who refused to close his office saw his computers thrown out of a 7th floor window.
    Two municipal garbage trucks were damaged after their drivers dared to continue to collect garbage.
    Anger at the terror groups has made it easier for the IDF to operate inside the refugee camps and the casbah.
    Only a few months ago, every entry by the IDF was met with mass riots, but today, IDF forays meet much less opposition, said Lt. Col. Avi, a paratroop commander.

No Reformist Election Upset in Gaza - Khaled Abu Toameh (Jerusalem Post Magazine, 9 July 04)
    News reports that Mohammed Dahlan's camp is winning in Fatah elections in Gaza have been discounted by Palestinian sources.
    A source close to Fatah said the voting was a local initiative by disgruntled Fatah activists and had not been approved by the Fatah Central Committee.
    "The old guard did not participate in the elections, so how can anyone say that they lost?" the source said.
    "The attempt to portray Dahlan as the head of a reformist camp fighting against non-reformists is ridiculous," said one official in Ramallah, and Dahlan was not involved in the campaign at any stage, sources said.

Israel's Security Fence: Decision of the International Court of Justice
  (Conference of Presidents of Major American Jewish Organizations)

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News Resources - North America, Europe, and Asia:

  • Palestinians Face U.S. Opposition Over UN Action
    Palestinians face a brick wall of U.S. opposition to possible UN moves against Israel after the World Court ruled Israel's West Bank barrier was illegal and should be dismantled. "We don't think there's a need for (UN) General Assembly action at this point," State Department spokesman Richard Boucher said Friday. "We think the efforts of the parties ought to be placed on seizing the opportunity that can be created for progress on the road map," he said. (Reuters)
        See also Israel Rejects World Court Ruling
    While Israel respects international law, it opposes the politicization of international bodies such as the International Court of Justice, said Dore Gold, a former Israeli envoy to the UN. "The terms of reference that the court was given by the UN could only result in a decision that was tantamount to the outlawing of the shield, while condoning the continued use of the sword," he said. "There is broad opposition among Western allies to the corruption of the ICJ and using it as a political weapon in lieu of political negotiations." (JTA)
  • Who Are the Iraqi Insurgents - and Can They be Defeated?
    What is clear is that many more jihadis did pour into Iraq after the conventional phase of the war. One early decree of American proconsul Paul Bremer abolished Iraq's border guard. Even today, only three of 36 former checkpoints on the border with Saudi Arabia are manned. Adnan Karim, a former admiral whose think-tank now analyzes the rebel groups for Iraqi Prime Minister Allawi, counts 36 different Sunni insurgent groups, inspired by the beliefs of puritanical Salafis, Sufi mystics, and Muslim Brothers. The Salafis are the most dedicated, a shade more so than the Sufis. Originally a Saudi movement, their Iraqi branch dates back to the 1960s. Only in the 1990s, when the UN's economic sanctions made many Iraqis poor, bitter, and prey to outside influence and cash, especially from Saudi Arabia, did the movement spread. (Economist-UK)
  • Saudis Facing Return of Radicals from Iraq
    An increasing number of Saudis who crossed the border into Iraq to fight the U.S.-led military occupation are returning home to plot attacks against the Saudi government and Western targets, according to Western counterterrorism officials and Saudis with ties to militant groups. The Iraq veterans are serving as fresh recruits for an underground network in Saudi Arabia. Other Saudis are returning after spending time in newly established training camps in remote parts of Sudan. Some Western officials express fear that the homecoming will grow if Iraq stabilizes. (Washington Post)
        See also Saudi Castle of Sand - Laurent Murawiec
    Saudi Crown Prince Abdullah's offer of a limited amnesty to al-Qaeda terrorists is a sure sign of the panic that has taken hold of the enfeebled House of Saud. It is also a sign of weakness, and will be read as such by the Saudi population. The dynasty does not have what it takes to fight and win. Arabia's Islamists believe they can grab it all: power, money, oil fields, holy places, and high-tech weaponry. There is an informal consensus among many Saudi watchers: The regime's life expectancy does not exceed 18 to 24 months. The writer is a senior fellow at the Hudson Institute in Washington, D.C. (Toronto Globe and Mail)
  • News Resources - Israel and the Mideast:

  • One Killed, 34 Wounded in Tel Aviv Terror Bombing - Yaakov Katz
    Sgt. Ma'ayan Naim, a 19-year-old female soldier, was killed and 34 wounded when a bomb exploded behind a bus stop in Tel Aviv. Hospital officials said that most of the injuries were caused by metal shards packed into the bomb. The Al Aksa Martyrs' Brigades from Nablus claimed responsibility for the attack.
        "The terrorist did not intend to just hurt Jews, but he went out to kill as many people as possible," said Sami Mcarah, an Israeli-Arab resident of Jaffa who was wounded by shrapnel. "I used to be opposed to the security fence, but now I support it, and I'm going to start a foundation to support the fence's construction," Mcarah told Israel Radio. (Jerusalem Post)
  • Arafat: Israel Masterminded Tel Aviv Bombing - Khaled Abu Toameh
    Arafat suggested that Sunday's Tel Aviv bomb explosion, claimed by his Aksa Martyrs Brigades militia, was an act of provocation carried out by Israel following the ruling of the International Court of Justice against the security fence. Members of the Aksa Martyrs Brigades in Jenin and Nablus took to the streets to celebrate the bomb explosion. The gunmen handed out sweets to passersby and pledged to continue the attacks against Israel. (Jerusalem Post)
        See also Arafat to Exploit Court Ruling for Sympathy, Control - Khaled Abu Toameh
    Ever since he arrived in Gaza in 1994, Arafat has been seeking to internationalize the conflict in order to isolate Israel and force it to make more concessions. The ruling is likely to ease the pressure on him to give up power and end corruption since everyone will be busy talking about the fence. Now Arafat will tell all those who are pressing him to reform that he will do so only when Israel respects the court ruling on the fence.
        Many Palestinians are hailing the court opinion as an "historic and major" achievement for Palestinian diplomacy. "The Palestinian cause is back on the top of the world's agenda," said one senior PA official on Saturday. According to sources close to the PA, Arafat will now try to persuade the international community to put some of Israel's political and military officials on trial for war crimes. "The fence is only part of the problem. We want to dig deeper. We want to see people like Sharon and Mofaz stand trial like [former Yugoslav President] Milosevic," said a Palestinian legal expert. (Jerusalem Post)
  • Suicide Bombings Harder to Pull Off
    Suicide bombers are the Palestinians' smartest bomb to date, but they have several disadvantages: the bombers tend to stick out, broaden the circle of those in the know, get arrested and incriminate their dispatchers, and have a last-minute change of heart.
        Nablus and Jenin are prime examples of the IDF's successful war against Palestinian terror. Two years ago, Nablus prompted eight to nine simultaneous alerts; today, the number is one to two. Jenin produced a similar number of alerts two years ago, and now the number is down to one per month. Eighteen months ago there were 300 wanted men in Nablus; today some 160 remain, including 20 senior militants. For the first time since the violence began, no new wanted men have been taking the place of those arrested and killed.
        The separation fence allows Palestinians a more normal lifestyle. There were 22 factories operating in Nablus 18 months ago; today there are 940 factories, and 200 new construction sites. (Ha'aretz)
  • Global Commentary and Think-Tank Analysis (Best of U.S., UK, and Israel):

    The Security Fence Decision

  • Dark Day for International Court of Justice - Ambassador Dan Gillerman
    When the question was initially posed to the court, a result of maneuvers by politically motivated forces, Israel and over 30 leading democracies did not believe that the court had the authority to deal with political disputes between Israel and the Palestinians. The court fails to address the essence of the problem and the very reason for building the fence - the indiscriminate, murderous campaign of terror that Israelis are facing. Palestinian terrorism has taken the lives of nearly 1,000 Israelis in over 20,000 attacks over the last three and a half years. No other country would act differently in the face of such an evil campaign. This opinion places the victims of terror on trial, instead of the terrorists.
        As long as the terrorism continues, Israel will have no choice but to defend its citizens. This is our moral and legal obligation. Israel calls on the Palestinian side to end its campaign of terrorism and return to the path of negotiations. Israel calls on the international community not to lend its hand to the ongoing Palestinian attempts to use international forums to avoid fulfilling their own commitment to fight terrorism. (Israel's UN Mission)
  • "Our Graveyards Hold the Reasons for the Fence" - Max Hastings
    Ehud Barak, a former prime minister, is perceived by most of his own nation as a discredited dove. Yet he said to me: "If I was prime minister, I would look any foreigner in the eye and say, 'We have 900 reasons to build the fence between Israel and the West Bank. You can count the reasons in our graveyards, in our people killed by suicide bombers. We are entitled to do this, even if we have to defy the world.'" (Telegraph-UK)
  • UN Court Ruling Ignores Victims of Terrorism - Editorial
    The quest for a settlement to the Israeli-Palestinian conflict has suffered an enormous setback at the hands of the International Court of Justice. This court would sweep aside Israel's right to defend its people. The U.S. must throw its full weight, including using its veto, against any UN effort to further the court's decision. To give this opinion even the slightest credence is to deny the reality of the nearly four years of Arafat's terrorist war against the Israeli people. The fence is being built because Arafat refused to negotiate a settlement. It's being built because Palestinian society embraces a cult of mass murder.
        The court's action, and the UN machinations that are sure to follow, will only embolden Arafat in his intransigence and spur fantasies among Palestinians that they can still somehow defeat the Israelis. That can only be a blow to any hopes to an eventual resumption of meaningful peace talks. Former prime minister Benjamin Netanyahu sums it up well: The UN can issue any pronouncement it wants, but "it won't make it legal, it won't make it true, and it won't make it just." (Chicago Sun-Times)
  • UN as Barrier - Editorial
    Once again the UN, this time through the International Court of Justice, has refused to deal realistically with the role of Palestinian violence. In a preposterous ruling, the court held that the barrier Israel is constructing along parts of the West Bank "cannot be justified by military exigencies or by the requirements of national security or public order." When was the last time any of the learned jurists dared to take a bus in Jerusalem, to go shopping in Haifa, or just to have a coffee in Tel Aviv? President Bush and Sen. John Kerry took a properly dim view of the ICJ meddling. If, as the court suggested, the Security Council takes up the specific issue of the barrier, the U.S. should make clear from the start that it will veto any provocative resolution that does not strongly take into account the fundamental question of Palestinian terrorism. (Houston Chronicle)
  • Israel Needs that Fence - Editorial
    The ruling by the International Court of Justice is more weary evidence that in disputes before world bodies, Israel is rarely given a fair hearing. There is precisely one good reason to continue building the fence: It works. According to the Israeli defense ministry, since the erection of the initial stretch of the fence, terrorist penetrations into Israel from the northern West Bank have plunged from 600 per year to zero. No nation wishes to spend billions of dollars on security to protect its citizens from ruthless, random attacks. But the larger point is that no nation should have to do so. Israel must. That is why it must also ignore the Hague ruling. (Montreal Gazette)
  • Israel Follows Its Own Law, Not Bigoted Hague Decision - Alan Dershowitz
    No Israeli judge may serve on the International Court of Justice in The Hague as a permanent member, while sworn enemies of Israel serve among its judges, several of whom represent countries that do not abide by the rule of law. Virtually every democracy voted against that court's taking jurisdiction over the fence case, while nearly every country that voted to take jurisdiction was a tyranny. Israel owes the International Court absolutely no deference. It is under neither a moral nor a legal obligation to give any weight to its predetermined decision. (Jerusalem Post)
  • Observations:

    Sharon: Terrorist Murder Occurred Under Auspices of Hague Court
    (Prime Minister's Office)

    Prime Minister Sharon told the Cabinet Sunday:

    • "An Israeli woman was murdered by criminal Palestinian terrorists and additional civilians were wounded....This morning's act of murder is the first to have occurred under the auspices of the opinion of the International Court of Justice (ICJ) in The Hague....The State of Israel completely rejects the ICJ's opinion."
    • "The opinion completely ignores the reason for the construction of the security fence - murderous Palestinian terrorism. It deals only with the Israeli response - the construction of the fence, which is the most reasonable means in the face of this despicable terrorism."
    • "The Palestinians...know full well that the completion of the fence will make it very difficult for them to continue perpetrating acts of murder."
    • "The opinion sends a deadly message that encourages terror on the one hand and prevents countries from protecting themselves against it on the other."
    • "Today, all who fear the spread of terror must stand alongside Israel in demanding that this immoral and dangerous opinion pass from the world."

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