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.
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.
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.
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