The Tyranny of the Judges

On Wednesday 9 November 2022, the UN Social, Humanitarian and Cultural Affairs Committee is set to begin debating, and voting on, a motion tabled by Nicaragua on behalf of the non-member state PA, that the Israeli presence in Jerusalem and the “West Bank” is de facto annexation., and therefore illegal under international law. In the likely event that the committee approves the measure, the UN General Assembly will vote on it next month and depending on that outcome, the issue may be forwarded to the ICJ for adjudication.

Such a move by the PA and its supporters throws up a range of difficulties and arguments as to why such a move may well prove to be ineffective in its broader (unstated) goal of delegitimising Jewish sovereignty and legality.

Firstly, it shows the continuing practical no-through roads delivered to the PA in the legal arena as evidenced in the tactic switch of abandoning a hitherto favourite PA support-base invocation, the Fourth 1949 Geneva Convention (GCIV). This is because that GCIV provision does not deal with the voluntary movement of individuals who do not displace local inhabitants, neither in Jerusalem nor in Area C of the West Bank.

Secondly, in pressing their claim for a ruling that Israeli presence in Israel’s capital Jerusalem is de facto Israeli “annexation” of Jerusalem, the Nicaraguan/PA request states that Jerusalem was intended to be a corpus separatum as foreseen in UN General Assembly Resolution 181 of 1947.

That Jerusalem, on partition in 1948, was intended to be a corpus separatum is in fact accurate.

But, the Nicaraguan/PA (and aided by a current secondary similar attack by the COI…) UN request turns a conveniently turns a blind eye to the fact that the moment six Arab armies attacked the nascent Jewish state which accepted its legal 1948 borders and the designation of Jerusalem as a corpus separatum per Resolution 181, UNGAR 181 became, arguably, moot.

That is to say, the concept of returning to a status quo ante after having lost a war one initiates, has never occurred in history and demanding it of Israel because the Arab world didn’t like the outcome, has several possible interpretations, none of them positive.

And indeed, while also remembering that UNGAR 1947 was, however, only a recommendation with no binding effect, the Resolution recommended the establishment of an Arab state, a Jewish state, and a special entity of Jerusalem.

UNGAR 181 never, ever, mentioned a Palestinian State. Nor did Resolution 242, post the 1967 Six Day War nor even Resolution 338 after the 1973 Yom Kippur war.

That the Arab League, in contrast to the Jews who accepted the territorial borders of the state they then called Israel, advised against accepting that Arab state per UNGAR 181 and gambled the farm on obtaining an easy military victory against a tiny legal and sovereign new state and subsequently lost, is not a sufficient reason to claim that “Palestinian” Jerusalem and the “Palestinian” West Bank have been annexed by the very state they sought to wipe out in 1948 in the first place but couldn’t/didn’t…..

There was, thus, no legal obligation under international law to accept and implement the corpus separatum regime which would only have become binding if the two parties had agreed to it.

Added to this legal difficulty for the PA, is the fact that on 14 May 1948 the Jordanian army attacked Jerusalem. The battle for the Old City ended with the surrender of the Jewish quarter to the forces of the Jordanian Arab legion (on 28 May 1948, 14 days later while the Israelis were in control of the western sector of the city. Jordan annexed East Jerusalem and the West bank in 1949 under the banner of “unification”.

Jordan had created a de-facto annexation of the eastern section of Jerusalem, an act recognized only by Britain and Pakistan, and an act they legislated with a formal annexation  a year later.

No representation was ever made by anybody to any UN body about UNGAR 181 and the principle of corpus separatum. So, no demand for a status quo ante then.

When Jordan saw fit in 1967 to attack Israel again, this time they lost not only the eastern section of Jerusalem, but also the territory they had annexed back in 1948 in what they termed the West Bank (of the Jordan River). With regard to Jerusalem, Israel immediately applied Israeli law to the newly gained sector of the city as well in the re-unification of Judaism’s cultural and religious core. The legality of this move is enshrined in the fact that because Israel had effectively occupied the area in an act of self-defence, over three wars of self-defence, it is a lawful occupant of that territory.

Of note, and also on 14 May 1948 the Israel’s declaration of independence, when the British mandate over Palestine was about to end, representatives of the Jewish community in Palestine adopted the Declaration of the Establishment of the State of Israel. The declaration did not mention Jerusalem, but it declared that Israel “will safeguard the Holy Places of all religions”.

For 74 years, Israel has kept its unwavering commitment to “…safeguard the Holy Places of all religions” as witnessed by complete freedom of worship for Christians, Muslims and Bahai in the Jewish state.

This is in contrast to the Jordanians and the PA which does not allow Jewish prayer on the Temple Mount, and where any Jewish presence during Jewish holidays and festivals are referred to by the rather comical PA term: “storming the Temple Mount/ al-Aqsa etc..

This brings us, finally, to the concept of the PA’s stab at pursuing a variant of universal jurisdiction as it applies to the PA’s latest moves at the UN.

Universal jurisdiction is the relatively new tool in the toolbox of Israel’s delegitimisers and critics. It is “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.” (Anne Herzberg, September 2008: 2, “NGO “Lawfare,” Exploitation of Courts in the Arab-Israeli Conflict”, NGO Monitor Monograph Series)

Here we have a non-member and non-sovereign observer UN entity, the PA, using the services of a sovereign member state, Nicaragua, to ask the ICJ to exercise universal jurisdiction over a legal sovereign state on grounds of illegal annexation, crimes against humanity, war crimes, and genocide, effectively in absentia.

And here, the implementation of universal jurisdiction in absentia, is not against a single person, (though that too was tried: Ariel Sharon, Doron Almog, Moshe Ya’alon, Tzipi Livni and Avi Dichter….), but against a state whose crime is apparently forcefully resisting genocidal attempts against it and undercutting its documented legitimacy.

Here, even the judges of the International Court of Justice (the ICJ), which is no

friend of the State of Israel, warned against the possible abuse of the principle of universal jurisdiction in the Yerodia case in 2002, stating: “If, as we believe to be the case, a State (the PA is not a state) may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that …[it] does not jeopardize stable relations between States.” (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 3 (February 14) (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).

At the risk of repetition, the PA is not a state, and the state of Nicaragua is a million miles removed from the Middle East.

That said, the glaring issue raised by the latest PA assault on Israeli legitimacy and security is that of the inviolability of the sovereign state of Israel when the principle of universal jurisdiction is abused to benefit a political agenda as in the Israel Palestinian conflict.

“As recognized by the UN Charter, Article 2(1), all states enjoy “sovereign equality” – that is, all states are equal members of the international community of states, and are to be treated accordingly. Universal jurisdiction, by its very nature, violates sovereign equality of states by allowing one state (here Nicaragua as the supplicant) to judge the actions of the officials of another state.  The principle therefore disregards one of the precepts of modern international law.” (Morrison and Weiner, 2010:7 “Curbing the Manipulation of Universal Jursidiction”, JCPA)

Under consideration in this article is the judicial outcome of the PA’s latest tilt at using lawfare to determine a political outcome; an example of how the political opportunism of ingrained entitlement, not negotiation, has, till now, been a successful strategy.

The issue here is not that the Arabs (now Palestinians) have an understandable right to their newfound wish for statehood, but that that relatively recent nationalistic endeavor has, at its core, the continued and oft-voiced statement(s) that any future Palestinian state will be at the expense of the destruction of the Jewish one, that any future Palestinian state will never agree to live in peace with a neighbouring legal and sovereign Israeli state.

Resolution 181 be damned.

Israel has never wavered in its commitment to face-to-face talks in final outcome negotiations, nor in its documented exchange of land for peace with its Arab neighbours.

What is documented though, is that, time after time after time, the Arab world has exchanged unsuccessful warfare for equally unsuccessful lawfare supported by organisations like the UN, and judicial courts like the ICJ, totally and comfortably removed from the violence and realities on the ground in Israel.

That is the tyranny of the judges.