The Hague Odyssey: Israel's Struggle for Security on the Front Lines of Terrorism and Her Battle for Justice at the United Nations

by Richard D Heideman

Overview

When the State of Israel came into existence in 1948, its very legitimacy as a nation was immediately challenged, often by the same people who questioned the rights of the Jewish people to live at peace on their own land. Yet since its independence, Israel has stood out as a nation with a truly democratic form of government surrounded by countries and peoples mostly ruled by tyrants and despots. This has led to wars, border skirmishes and other assaults against Israel. This reached a pinnacle with the steady terrorist assaults against innocent civilians known as suicide bombings. Instead of condemning these attacks, many ignored the inhuman brutality or even worse, glorified the Palestinian Arab perpetrators as martyrs. One of the favored forums for attempts to isolate Israel is at the United Nations. Rather than empathy for the Jewish victims of terrorist attacks, the UN has repeatedly excoriated Israel for its actions toward the Palestinians, ignoring the fact that most of the Palestinian people lived in areas controlled by their own Arab leaders. As a result of the onslaught of the Second Intifada, Israel planned and began the construction of a terrorism prevention security barrier. Built roughly between Israel and the Palestinian territories, Israeli leaders made clear that it was not an attempt to create a border and preempt negotiations, but solely for the purpose of defending and protecting her people. There have been a number of objections from Palestinians, with support from some Israelis, who felt that they were unduly burdened by the barrier. Many of these complaints were lodged with Israel's vibrant and independent court system. Instead of rubber-stamping decisions, courts looked at each situation and in some cases have ordered that the route be changed or altered. In 2004, Israel's detractors at the UN, who refused to even recognize the right or need for Israel to be able to protect its citizens, saw another avenue to demonize the state. Defying its own charter, the UN General Assembly requested of the International Court of Justice at the Hague an advisory opinion about the security fence and its applicability under international law, some calling it an apartheid wall. Few people around the world were even aware that such an important tribunal was looming . Fewer still seemed to understand the potential difficulties it might cause for Israel and other countries desiring to protect their own citizens from terror attacks. One who immediately understood the danger if Israel was not allowed to adequately defend its citizens was Richard D. Heideman. An internationally known attorney, former President of B'nai B'rith International and advocate for the rights of victims of terrorism both in the US, in Israel, in Lebanon and in Europe, he understood how vulnerable innocent civilians would become under such limitations. Heideman filed the only brief on behalf of a non-governmental organization, the Foundation for the Defense of Democracies. He forcefully laid out the case to the ICJ for Israel's right, and obligation, like every nation-state, to provide for the defense of her population. At the same time, he served as lead counsel at hearings held at The Hague, highlighting the victims and their suffering. We follow Heideman's meticulous and passionate defense of Israel's right to defend its people. He complements his arguments with sharp, insightful analysis of the Court's eventual negative and, some would say, inevitable ruling. and is sure to be essential reading for any contemporary discussion of the Arab-Palestinian-Israeli conflict and the questionable ability of the United Nations to have a positive role in achieving a just and secure Israel.

Product Details

ISBN-13:	9780910155991
Publisher:	Bartleby Press
Publication date:	04/05/2016
Pages:	402
Product dimensions:	6.00(w) x 9.00(h) x 1.40(d)

About the Author

Richard D. Heideman is a tireless fighter on behalf of the State of Israel and an advocate for victims of terrorism around the world whose human and individual rights have been violated. Founder of the Washington, D.C. law firm of Heideman Nudelman & Kalik PC, he is licensed to practice before the US Supreme Court and numerous federal and state courts. He was twice elected President of B’nai B’rith International

Table of Contents

Acknowledgements xiii

Preface xv

Introduction 1

Chapter 1 The Arab-Israeli Conflict and The Role of United Nations 5

Chapter 2 The Violence and Attempts at Achieving Peace Between Israel and the Arab Palestinians 9

Peace, War and the Status of Diplomatic Relations

Past Attempts at Peace

The Oslo Accords, the Gaza Security Fence, the Wye River Accords and the Middle East Peace Summit at Camp David

Failed Attempts at Peace

The Second Intifada's Reign of Terror

A Missed Opportunity

The Palestinian Authority and Terrorist Organizations

The Second Intifada, the Mitchell Report, Historic Rose Garden Speech by President George W. Bush and the Roadmap for Peace in the Middle East

The Disengagement Plan

The Failure of Leadership by Yasser Arafat and the Hopes for His Successor

Implementing Israel's Disengagement from Gaza

The Political Rise of Hamas as an Obstacle to Peace

Quartet Envoy Tony Blair, Diplomacy and the Security Fence

US Efforts to Improve Security

Continued Attacks from Gaza-At the Center of the Ongoing Conflict

Gaza, the Naval Blockade and Relations with Turkey

Hamas Efforts to Destroy Peace Making in Spite of Efforts to Implement the Roadmap

The Obama Administration's Efforts Toward Peacemaking

Benjamin Netanyahu's Government and His View of the Security Fence as a Necessary Means to Stopping Terrorism

Chapter 3 The History of the Terrorism Prevention Security Fence-Its Purpose and Structure 61

The Meaning of the "Green Line"

Historical Origins of the Terrorism Prevention Security Fence and the Debate Surrounding its Construction

Construction of the Security Fence

The Terrorism Prevention Security Fence Saves and Protects Lives

The Israel-Jordan Security Fence has Helped the Countries be Good Neighbors and has Helped Israel Fulfill Her Obligation of Protecting Her Citizens

Terrorism Must Not Be Allowed To Succeed

Chapter 4 The Impact of the Security Fence on the Lives of Palestinians and Israelis 87

The Fence's Impact on Palestinians Living on the West Bank

The Fence's Impact on Israeli Lives

Chapter 5 Propaganda and Red Herrings: Semantics, Specters of the Berlin Wall and Apartheid 99

Semantic Debate: Fence, Wall and Separation Barrier

Specter of the Berlin Wall

Specter of Apartheid

Chapter 6 Judicial and Political Actions Leading Up to the ICJ Opinion 117

Proceedings Before the Israeli High Court of Justice

Actions in the United Nations Security Council

The UN Charter and The International Court of Justice

United Nations General Assembly Referral of the Issue of the Fence to the International Court of Justice

Chapter 7 The Advisory Opinion: Sum and Substance 123

The Advisory Opinion

History of the Proceedings: Paragraphs 1 through 12

Questions of Jurisdiction: Paragraphs 13 through 42

Discretionary Power of the Court to Exercise its Jurisdiction: Paragraphs 43 through 65

Scope of Question Posed: Paragraphs 66 through 69

Historical Background: Paragraphs 70 through 78

Description of the Wall: Paragraphs 79 through 85

Applicable Rules and Principles of International Law: Paragraphs 86 through 113

United Nations Charter and General Assembly Resolution 2625 (XXV): Paragraphs 87 through 88

International Humanitarian Law: Paragraphs 89 through 101

Human Rights Law: Paragraphs 102 through 113

Violation of Relevant Rules: Paragraphs 114 through 142

Impact on Right of Palestinian People to Self-determination: Paragraphs 115 through 122

Relevant International Humanitarian Law and Human Rights Instruments: Paragraphs 123 through 137

Self-defense and the State of Necessity Defense: Paragraphs 138 through 142

Legal Consequences of the Violation: Paragraphs 143 through 148

Legal Consequences for Israel: Paragraphs 149 through 154

Legal Consequences for States Other than Israel: Paragraphs 154 through 159

Legal Consequences for the United Nations: Paragraph 160

General Context of the Conflict: Paragraphs 161 through 162

Dispositif: Paragraph 163

Judge Buergenthal's Strong Dissent from the Advisory Opinion

The Separate Opinions of the Other ICJ Judges

Chapter 8 Lack of jurisdiction for the International Court to Issue an Advisory Opinion 187

Jurisdiction Lacking Because of Procedural Defects

The Jurisdictional Grants of the ICJ Statute were Not Met

A Jurisdictional Requirement Without Meaning?

The Meaning of "Legal Question" within Realist/Idealist Debate

The Textual Interpretations of "Legal Question"

There is No Legal Question Because the Dispute Does Not Concern Two States

There is No Legal Question Because the Question was Legally Uncertain

Conclusion

Chapter 9 The impropriety and dangers of the International Court of Justice's Issuance of the Advisory Opinion 207

The ICJ's Actions were Improper in Light of Its Judicial Function

Compelling Reasons Not to Have Issued an Advisory Opinion on Israel's Security Fence

Chapter 10 Issues, Questions and Dangers 239

The Fourth Geneva Convention and the Israeli Terrorism

Prevention Security Fence

Israel's Inherent Right to Self-Defense and the ICJ's Interpretation of Self-Defense in the Advisory Opinion

The ICJ's Interpretation of Article 51 of the UN Charter in the Advisory Opinion on Israel's Security Fence

The Court's Historical Limitations on its Interpretation of Self-Defense

Israel's Self Defense-Within the UN Charter

Israel's Self-Defense-Beyond the UN Charter

Israel's Self-Defense in the Age of Terrorism

Israel's Security Fence is a Legal and Effective Measure of Self-Defense

Israel's Use of Land, Restriction on Movement and Rights to the Land through the Effluxion of Time

Chapter 11 omissions and errors Equal Injustice 253

The Advisory Opinion Omitted Facts Regarding Palestinian Terrorist Attacks Against Israel

The Advisory Opinion Omitted Facts Regarding Israel's High Court of Justice Opinion on the Security Fence and the Role and Responsibility of the Israeli Judiciary's Continual Legal Review of the Security Fence

The Beit Sourik Village Council Opinion

The Effect of the Beit Sourik Opinion

The Alfei Menashe Opinion

Additional Israeli High Court Orders

The Bil'in Village Council Opinion

The Israeli High Court's Ongoing Role Overseeing the Route of Fence

Conclusion

The Advisory Opinion Omitted the Standard of Proportionality as a Counter Terrorism Measure

The Meaning of Proportionality

Proportionality and the International Court of Justice

The Proportionality Analysis in the Israeli High Court's Beit Sourik Decision

Conclusion

The Advisory Opinion Omitted Facts Regarding Other Countries' Fences and Barriers

Chapter 12 In the Aftermath of the Advisory Opinion 277

The UN Security Council, the General Assembly, UN Agencies and Israel

The Policies of the United States in the Aftermath of the ICJ's Advisory Opinion

The Measures Taken in the Aftermath of the ICJ Advisory Opinion Reflect a Reality in Which an Advisory Opinion is No Longer Just an Opinion

A Few Hopeful Signs that the Law-Abiding World Will Recognize Israel as a Respected Member and Acknowledge Her Right and Obligation to Defend Her Citizens

Chapter 13 The Victims 296

The Terrorism Prevention Security Fence Works: It is Necessary to Protect the Victims of the Future

More Must Be Done to Stop Terrorism

Chapter 14 Israel's Battle for Justice in a Dangerous Neighborhood 301

Political Maneuvers to Delegitimize Israel Continue

Israel's Battle for Security on the Frontlines of Terror

Conclusion

Endnotes 307

Index 371

About the Author 383