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The failure of the 15 judges of the International Court of Justice (ICJ) to fully examine the international legal status of the West Bank is an error of monumental proportions which has fatally flawed the advisory opinion it has given to the United Nations on Israel's right to erect a security fence in the West Bank.
The ICJ appears to have been totally ignorant of the existence of Jewish rights in the West Bank arising under international law created by Article 95 of the Treaty of Sevres 1920 and the Mandate for Palestine 1922, and preserved by article 80 of the United Nations Charter.
It is hard to believe that a Court composed of such eminent jurists could have acted in such an incompetent and reckless manner to the detriment of the Jewish people.
Israel's presence in the West Bank extends far beyond that of being a military occupier since 1967. Israel also has the right in international law to facilitate the settlement of Jews in the West Bank for the purpose of reconstituting the Jewish National Home in that area.
Any action taken by Israel in the West Bank must accordingly be considered from this dual perspective, which the ICJ has failed to do.
Ironically only Judge Elaraby, an Egyptian judge whose presence on the Court was unsuccessfully objected to by Israel, was prepared to state that "the international legal status of the Palestinian Territory merits more comprehensive treatment" than the Court gave to this fundamental issue.
Judge Elaraby identified the need for such a review saying:
"A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on one or more than one occasion, the rule of law was consistently sidestepped."
The failure of the ICJ to adopt this principled stand before reaching its decision is inexplicable and is deserving of the strongest condemnation. Its judgement, as a result, is not worth the paper it is written on.
Judge Elaraby said: "The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain" by the League of Nations.
Rather than examining the terms of the Mandate document and articles 94 and 95 of the Treaty of Sevres, both the Court and Judge Elaraby incorrectly asserted that the Mandate for Palestine was established under paragraph 4 of Article 22 of the Covenant of the League of Nations.
Paragraph 4 of the Covenant provided that "certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone".
Article 94 of the Treaty of Sevres clearly indicated that Paragraph 4 did apply to the Arab inhabitants living within the areas covered by the Mandates for Syria and Mesopotamia, which were created at the same time as the Mandate for Palestine.
Article 95 of the Treaty of Sevres however made it abundantly clear that paragraph 4 was not to apply to the Arab inhabitants living within the area covered by the Mandate for Palestine. This Mandate was to be of a unique character and nature unlike any other Mandate established by the League of Nations.
Unlike the Mandates for Syria and Mesopotamia, the Mandate for Palestine
1. was not established under paragraph 4 of Article 22 of the Covenant of the League of Nations
2. did not consider the Arab inhabitants as an independent nation that could be provisionally recognized
3. At best promised local autonomy to the Arab inhabitants if circumstances permitted
What the Mandate for Palestine recognised in clearly expressed terms was
1. the historical connection of the Jewish people with Palestine and to the grounds for reconstituting the Jewish National Home in that country provided that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country.
2. the authority of the Administration of Palestine to facilitate Jewish immigration and to encourage close settlement by Jews on the land, including State lands and waste lands not required for public purposes, whilst ensuring that the rights and position of other sections of the population were not prejudiced.
Yet the Court makes not one mention at all of these Jewish rights to settle in the West Bank created by an international instrument to which Members of the United Nations were parties and of the obligation of the United Nations to ensure that these rights were preserved for the benefit of the Jewish people in accordance with the obligations imposed on member States by Article 80 of its own Charter.
Who within the ICJ undertook the legal research, which resulted in the ICJ delivering a judgement which failed to identify and consider the existence of those Jewish rights in the West Bank and their relevance to the issues before the Court?
Was such researcher influenced by unsubstantiated material appearing on sites such as palestinefacts.org or palestinerembered.com, which contain similar erroneous statements that the Mandate for Palestine was created under paragraph 4 of Article 22 of the Covenant of the League of Nations?
The ICJ urgently needs to disclose who carried out the research to enable its judgement to be so formulated and the facts justifying it to come to such an unrealistic conclusion.
Had the Court been aware of and considered such Jewish rights in international law, it would have been patently clear that the United Nations General Assembly had consistently sidestepped the rule of law in the many resolutions it had passed on the illegality of settlements established by Israel in the West Bank and on Israel's right to build a security fence in the West Bank.
Why too did United Nations Secretary General, Kofi Annan, omit to include copies of the Treaty of Sevres and the Mandate for Palestine in the extensive dossier of documents given by him to the Court? Was he guilty of misleading the Court by withholding material documents bearing on the issues relating to the advisory opinion being sought? Did he have an obligation to highlight Article 80 of his own Charter and seek the Court's opinion on the relevance of that Article to the legal opinion being sought by the United Nations?
The ICJ's failure to properly consider the legal status of the West Bank in international law has amounted to a gross miscarriage of justice, which will have serious repercussions for resolving the ongoing struggle between Jews and Arabs over the sovereignty of, and the rights of Jews to reside in, the West Bank.
The decision will give credence to the perception of a biased and anti-Israel United Nations and a Court that cannot be trusted to properly consider legal issues referred to it by the United Nations in a fair and impartial manner.
The decision will certainly encourage those web sites continually proclaiming that Jews have no legal rights to settle in let alone claim sovereignty in any part of the West Bank to continue their campaign of vilification and hatred against Jews.
The Jewish People has since 1922 consistently indicated its preparedness to forego its legal rights in part of Palestine but the Arabs have always rejected such overtures. For the Arabs it has always been all or nothing at all.
The ICJ's decision will only encourage the hardening of such a view and weaken those voices within the Arab community who want to see an end to the murder and killing visited on both Jews and Arabs in the last 120 years.
No amount of disinformation, lies or propaganda can change the legal right of the Jewish people to live in the West Bank and to take all reasonable measures to protect their lives from deadly attacks involving ambushes, drive by shootings, home invasion and suicide bombings carried out by their Arab neighbours contrary to the right to life of every human being.
The fact that the ICJ failed to spell out that message loudly and clearly because of its own perceived incompetence and failure to consider the legal status of the West Bank in international law, will be the lasting legacy of a decision which binds no one yet has the power to affect so many.
David Singer is an Australian lawyer and convenor of Jordan is Palestine International whose aim is to engage Israel and Jordan in direct negotiations to allocate sovereignty in the West Bank between them as the two successor States to the Mandate for Palestine.
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