Israel in the dock (again): UN court sits in judgment on Israeli ‘occupation’

October 6, 2023 by David Isaac
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Two pro-Israel NGOs are defending Israel against the United Nation’s latest attack as the world body’s International Court of Justice considers a case that could have serious ramifications for the Jewish state, the groups say.

U.K. Lawyers for Israel (UKLFI) and the European Leadership Network (ELNET) submitted a 40-page memorandum to the court on Sept. 29 challenging the “false allegations” made against Israel.

UKLFI CEO Jonathan Turner, the memorandum’s main author, told JNS, “An adverse outcome will encourage violence by Palestinian groups and individuals. It will promote terrorism and it will also promote boycotts, divestment and sanctions targeting Israel.”

The International Court of Justice in The Hague, Netherlands. Credit: Wikimedia Commons.

A U.N. General Assembly resolution, passed by 87-26 on Dec. 30, 2022, asked the court to issue an advisory opinion on the “legal consequences” of Israel’s “ongoing violation” of “the right of the Palestinian people to self-determination” and “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967.”

It also asked the court to judge alleged actions Israel took to alter “the demographic composition, character and status of the Holy City of Jerusalem.”

Israeli officials sharply criticized the resolution at the time, with Israeli Prime Minister Benjamin Netanyahu calling it “disgraceful…The Jewish people is not occupying its land and is not occupying its eternal capital Jerusalem. No U.N. resolution can distort this historical truth.”

The International Court of Justice is one of the six principal organs of the United Nations and is meant to settle disputes between states. Its advisory opinions are often used as sources of international law.

The U.N.’s Palestinian delegation and its supporters want the ICJ to issue a verdict that Israel is occupying Judea, Samaria and the Gaza Strip, areas captured in the 1967 Six-Day War, (even though it left the Gaza Strip in 2005), Turner said, adding, “The verdict won’t be legally binding, but a lot of people will regard it as authoritative and treat as if it were an accurate statement of the law. It will be quite difficult to displace it in anything but the most friendly tribunals.”

An adverse verdict might also impact the actions of the International Criminal Court, said Turner. In March 2021, the ICC announced its intention to investigate alleged Israeli war crimes, but has been slow to act on that decision, he added. Although there is no direct link between the two courts, should the case go against Israel it may spur the ICC to step up its own investigation. “It will make it more difficult for the [ICC] prosecutor to say that [pursuing Israel] is not a priority, that there are complications and so on,” said Turner.

The core argument of the memorandum Turner’s UKFLI and ELNET submitted is that the United Nations is an anti-Israel organization (an assertion for which ample evidence is supplied) and as such cannot be relied on to provide objective information concerning Israel. The court should, therefore, refrain from basing a decision on such material, according to the memorandum, and the best decision it can make is to make no decision.

Turner admitted, however, that this was an unlikely outcome: “The argument that the court doesn’t have sufficient evidence or information has been raised in a number of recent cases, and the International Court of Justice has rejected the argument in all of them.”

One of those previous cases involved Israel’s security barrier, which the court ruled in 2004 breached international law. “That opinion was based upon inaccurate and one-sided information put before the Court by the U.N. Secretariat, as was cogently demonstrated by the decision of the Israeli Supreme Court of 15 September 2005,” the memorandum stated.

In the current case, the U.N. Secretary General has “actually gone overboard,” providing 29,000 pages of documents, Turner said, adding that it’s all U.N.-produced material and “highly unreliable,” the product of “the U.N.’s long standing anti-Israel bias.”

The material also dates from 1967, as if the history of the conflict began that year, and so gives short shrift to long-held Jewish rights to those territories, he added. To rectify the omission, the memorandum includes a brief history of Jewish claims to the Land of Israel from ancient to modern times.

“The whole thing is reminiscent of medieval disputations,” when Jews had to defend their religion or their religious texts in mock courts where the deck was stacked against them, said Turner. “Of course, there was only one inevitable verdict: that the Jews, or the Jewish books, were guilty or were blasphemy.”

Once more, Jews are in the minority, with dozens of countries issuing submissions against it in a hostile framework. Another “striking” similarity to the medieval trials is that many of the “leading submissions” against Israel are presented by people of Jewish extraction. “In the medieval disputations, they were nearly all Jewish converts,” Turner noted.

As the fix is in, Israel is understandably reluctant to take part in the case, a move that could end up lending it credibility. Israel’s Foreign Ministry told JNS that a decision about whether to participate “hasn’t been taken yet.”

Turner said that Israel has provided a written submission to the court, but it may have only said that that the court shouldn’t take the case. He noted that the question of whether or not to participate in the proceedings also hearkens back to medieval times.

“In the Middle Ages, there was anguished debate in Jewish communities as to whether to have someone represent them at these disputations or whether to boycott them,” he said. “Do you send someone there to present your case and give them a certain credibility, or do you stay out and denounce it as a complete travesty? Israel feels this as well.”

Turner’s view is that it’s better to take part, to present Israel’s positions and try to point out the “falsity of the arguments being raised.”

He argues that history bears out his position, pointing to the famous case of Rabbi Nachmanides in the Disputation of Barcelona in 1263. Held at the royal palace of King James I of Aragon, the disputation featured Dominican Friar Pablo Christiani, a Jewish convert, attempting to prove the truth of Christianity from the Talmud and other rabbinical writings. Although Nachmanides would be forced to flee following the disputation, King James I awarded him a prize of gold coins, saying he had never heard “an unjust cause so nobly defended.”

It has been viewed as a sign that Nachmanides scored points against the prosecution. His success may have deterred others at the time from pursuing Jews in that manner, Turner said, “And I think that could well be an outcome here if we put up a serious challenge. It might have a beneficial effect.”

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