B’NAI BRITH CANADA’S POSITION ON THE INTERNATIONAL COURT OF JUSTICE ADVISORY OPINION ON ISRAEL’S SECURITY FENCE

B’nai Brith Canada sees the Advisory Opinion by the International Court of Justice (ICJ) as “openly hostile to Israel”.

The language of the decision, which repeatedly refers to Israel as “the hostile state”, demonstrates that the proceedings, as well as the premise on which they were based, were inherently biased. Canada and the European Union were among more than 30 countries – the major democracies of the world – that did not accept the jurisdiction of the Court and therefore did not participate in the proceedings. The ICJ opinion was therefore based solely on the testimony of countries openly antagonistic to Israel - including 56 countries from the Organization of the Islamic Conference and 22 members of the Arab League - which managed to push this issue before the Court, even though less than half the member states of the United Nations supported the move.

The Court has prejudged all aspects of the Israeli-Palestinian dispute in a way that is harmful and prejudicial to Israel, and has thereby bypassed the entire peace process.

The decision has entirely ignored the right of the Jewish people to self-determination in their ancient homeland. The ICJ ruling effectively sanctions a judenrein policy - a West Bank and Gaza free of Jewish communities, a state of affairs all too common in many parts of the Arab world. It has also prejudged the status of Israel’s national and religious capital with repeated linkages between Jerusalem and the broad terminology “the occupied Palestinian territory”.

The ruling denies Israel the right to defend itself against Palestinian terrorism under Article 51 of the UN Charter on the grounds that this provision is limited to a state defending itself against aggression by a “sovereign state”. Elsewhere, however, the ruling continually refers to “Palestine” as if it were already a sovereign state.

Israel’s anti-terrorist security fence has proven itself a vital defense against Palestinian terrorism. According to recently released data, in areas where the fence has been completed, the rate of terrorist infiltrations into Israel has been dramatically reduced by as much as 90%. The fence is a non-violent and effective way of countering terrorist incursions, a phenomenon all but ignored by the Court. No other state is denied the fundamental right to defend its citizens against terrorism.

Although the ICJ ruling is not legally binding, it has been given a veneer of legality that will be exploited to the maximum.

Although that ICJ is widely viewed as an impartial body, it is the principal judicial organ of the United Nations. The ICJ has subsequently accepted as a starting point the various UN General Assembly rulings relating to the Israeli-Palestinian conflict and is thus merely a refection of the current anti-Israel bias that prevails at the UN. The ICJ has, in effect, ruled as if it were arbitrating a dispute (its primary role), rather than merely rendering an advisory opinion (its secondary function), something that it would not be mandated to do unless the states concerned had first accepted its jurisdiction. Nevertheless, its non-binding advisory opinion will be popularly seen as an actual ruling against Israel.

It is widely expected that the Palestinians and their Arab supporters will push forward with their plans to undermine Israel’s legitimacy, and do so through the use of UN forums such as the Emergency Special Session.

The Arab bloc at the UN will move to reconvene the Tenth Emergency Special Session of the UN General Assembly to address the ICJ decision. Since the Court has obligated all states to pressure Israel on this issue – in effect, an open-ended call for the ostracization of Israel – it will likely be open season on the Jewish State in the coming weeks. A resolution will probably be circulated at the UN that will call on Israel to implement all parts of the non-binding advisory opinion within sixty days, or face sanctions. Anti-Israel states will then lobby countries such as Canada and members of the European Union for support before tabling the resolution. This will allow the anti-Israel majority to reconvene the Tenth Emergency Special Session while world leaders and foreign ministers are in New York for high level meetings preceding the 59th Session of the UN General Assembly.

As a democracy, Israel has shown itself willing and able to address any hardship or inconvenience which results from the routing of the fence. Interference by an outside body is therefore unnecessary and inappropriate and bypasses Israel’s own judiciary.

Israel’s recent High Court ruling mandated the government to re-route a 30-kilometer stretch of its planned greater Jerusalem security barrier (the entire routing of the West Bank fence is 730-kilometers). In its ruling, Israel’s highest court upheld the legality of Israel’s fence construction and recognized the essential life-saving component of the security barrier. In what is reflective of Israel’s vibrant democracy, the Court insisted on the re-routing so as to ensure that “undue hardship to Palestinian residents” would not occur. Israel has gone to extraordinary lengths to ensure that this is so. Israel will respect the decision of its own High Court; it will not respect the advisory opinion of the ICJ which undermines Israel’s sovereign right to self defense, as well as its independent judiciary. If the United Nations attempts to bypass Israel’s Supreme Court by imposing the non-binding opinion of the ICJ, this could well have negative implications for all democracies in the future.