Article By Maurice Ostroff

[Comments are welcome at our Dialogue Corner]

Where the ICJ Went Wrong

Part 2

In part 1, we discussed some serious weaknesses and errors in the ICJ advisory. We now examine the faulty manner in which the ICJ interpreted the historical context surrounding Israel's struggle for survival since birth and its faulty assumption about the legality of Israel's presence in the West Bank and Gaza.


Referring to the 1947 UN partition resolution, clause 71 states, "Israel proclaimed its independence on the strength of the General Assembly resolution; armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented". 

"Armed conflict broke out." Indeed! The statement is equivalent to historians reporting blandly without any explanation "The Twin Towers were destroyed on 9/11". Not even the most extreme history revisionist denies that Israel accepted the 1947 UN partition resolution; the Arabs rejected it. Immediately Israel declared independence in 1948, the Arab League declared "Holy War", with the publicly announced intention of driving the Jews into the sea. Lebanon, Jordan, Syria, Egypt and Iraq invaded the newborn state, expecting to destroy it in a matter of weeks.  Arab League Secretary, General Azzam Pasha declared "This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades". The Mufti of Jerusalem, Haj Amin Al Husseini pronounced "I declare a holy war, my Moslem brothers! Murder the Jews! Murder them all!"

In her separate opinion Judge Higgins wrote, "...I find the history as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory".


The ICJ advisory treats, as a given fact, that Israel's presence in the West Bank and Gaza is illegal. Surprisingly, this body of eminent judges did not consider it important to examine the legal arguments on which this conclusion was reached. In clause 74, the ICJ makes a very cursory reference to one of the most important and hotly debated SC resolutions. To really understand what 242 is about, who better to turn to than one of the authors of the resolution, the late Eugene Rostow. In an article "Are the settlements legal?" in The New Republic, (October 21, 1991), Rostow wrote:

"Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved. When such a peace is made, Israel is required to withdraw its armed forces "from territories" it occupied during the Six-Day War--not from "the" territories nor from "all" the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called "secure and recognized" boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims."

The indisputable facts are that prior to 1967, the West Bank and East Jerusalem were not possessed by the Palestinians but were ILLEGALLY occupied by Jordan. Gaza was similarly, ILLEGALLY occupied by Egypt, both countries having illegally invaded the territories in defiance of the 1947 UN Partition Plan. Jordan resolved to annex the West Bank and Jerusalem in 1950 but this attempt at annexation was rejected by the vast majority of the international community, including the Arab states. Only Great Britain and Pakistan recognized this attempt at annexation.

It is relevant to quote former State Department Legal Advisor Stephen Schwebel, who at one time headed the ICJ. In 1970 he wrote: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. It is a matter of history that Israel only entered the West Bank in self-defense. It is also a matter of record that the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War".

Contrary to the basic assumption on which the ICJ advisory is based, the unavoidable logical conclusion is that Israel's presence in the West Bank and Gaza may be justifiable or unjustifiable, wise or unwise, but it certainly is not illegal until such time as a just and lasting peace is achieved. The corollary is that the minor intrusions of the ATB into the West Bank are justifiable in terms of international law, subject to the conditions imposed by the Israel High Court ruling referred to earlier.

Maurice Ostroff, 29/July/2004

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