From the separate opinion of Justice Nabil el-Araby of Egypt, in the International Court of Justice’s opinion on The Legality of the Construction of A Wall in the Occupied Palestinian Territory, on 9 July 2004, who argued that the UN has a special responsibility for Palestine:
“What I consider relevant to emphasize is that this special responsibility was discharged for five decades without proper regard for the rule of law. The question of Palestine has dominated the work of the United Nations since its inception, yet no organ has ever requested the International Court of Justice to clarify the complex legal aspects of the matters under its purview. Decisions with far-reaching consequences were taken on the basis of political expediency, without due regard for the legal requirements. Even when decisions were adopted, the will to follow through to implementation soon evaporated. Competent United Nations organs, including the General Assembly and the Security Council, have adopted streams of resolutions that remain wholly or partially unfulfilled. The United Nations special responsibility has its origin in General Assembly
resolution 118 (II) of 29 November 1947 (hereafter, the Partition Resolution). Proposals to seek advisory opinions prior to the adoption of the Partition Resolution were considered on many occasions in the competent subsidiary bodies but no request was ever adopted … The Sub-Committee in its report, some two weeks before the vote on the Partition Resolution, recognized that: ‘A refusal to submit this question for the opinion of the International Court of Justice would amount to a confession that the General Assembly is determined to make recommendations in a certain direction, not because those recommendations are in accord with the principles of international justice and fairness, but because the majority of the representatives desire to settle the problem in a certain manner, irrespective of what the merits of the question or the legal obligations of the parties might be. Such an attitude will not serve to enhance the prestige of the United Nations. . . .” The clear and well-reasoned arguments calling for clarification and elucidation of the legal issues fell on deaf ears. The rush to vote proceeded without clarifying the legal aspects. In this context, it is relevant to recall that the Partition Resolution fully endorsed referral of “any dispute relating to the application or interpretation” ‘ of its provisions to the International Court of Justice. The referral “shall be . . . at the request of either party. Needless to say, this avenue was also never followed. Thus, the request by the General Assembly for an advisory opinion, as contained in resolution 10114, represents the first time ever that the International Court of Justice has been consulted by a United Nations organ with respect to any aspect regarding Palestine”.
Justice el-Araby’s opinion, part of the International Court of Justice’s Advisory Opinion on The Wall, can be read in full here.
Gershon Baskin, co-Chairman with Palestinian Hanna Siniora of the Israeli-Palestinian media center, who has also become a columnist for the Jerusalem Post, wrote this week that “At the outset of Oslo, the world, including the Arab world (and also including the supporters of peace in Israel and in Palestine), actually believed that the peace process was about ending the occupation, peace between two states living side-by-side, building cross-boundary cooperation in every field possible, ending violence and ending the conflict. During those optimistic days, several countries without diplomatic relations with Israel established them, and several Arab countries even allowed it to open commercial interests offices in their countries. Some Arab countries even opened their own representative offices in Israel. This was possible because they believed the Oslo peace process would bring an end to the occupation. They had good reason to believe that. The Israeli-Palestinian Interim Agreement of September 1995 stated clearly: ‘The two sides agree that West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations, will come under the jurisdiction of the Palestinian Council in a phased manner, to be completed within 18 months from the date of the inauguration of the council’. The agreement further stated: ‘Redeployments of Israeli military forces to specified military locations will commence after the inauguration of the council and will be gradually implemented’. The interpretation of these sections was that prior to the beginning of permanent status agreements Israel would have withdrawn from more than 90 percent of the West Bank. The US and the Palestinian calculated then that the land area connected to permanent status negotiations, meaning the settlements, accounted for 2%-5% of the West Bank (counting the built-up areas of the settlements with a radius of about 100 meters from the last home in each settlement). The ‘specified military locations’ was estimated to account for about 2% of the West Bank. When Binyamin Netanyahu was first elected in 1996, a ‘conflict’ of interpretation developed between the Prime Minister’s Office and the Foreign Ministry. At that time I saw a document produced by the legal department of the Foreign Ministry explaining that the new interpretation of the Prime Minister’s Office was incorrect. It stated the following: According to the Prime Minister’s office, the settlement areas in question are based on the statutory planning maps of the civil administration and not on the built-up areas. Those zoning maps provide the settlements with about 40% of the West Bank. Furthermore, the Prime Minister’s office stated that instead of ‘specified military locations’ the real intention was ‘security zones’ – meaning that the entire Jordan Valley is a security zone, all of the areas around settlements are security zones, the bypass roads to settlements are security zones, and so are all of the lands adjacent to the Green Line. In other words, 60% of the West Bank would remain in Israeli hands, and in the negotiations with the Palestinians Israel would retain well above 10% of the West Bank, and if possible more. This, according to the Palestinians and even the US, was a major breach of the agreement and it was one of the significant reasons for the failure of the entire process. At that point, the process ceased to being about ending the occupation … Ariel Sharon always believed, as did other Likud leaders,that the settlements would be the best way of preventing the establishment of a Palestinian state in the West Bank. It turns out that they were probably right. Many today even question the very viability of a Palestinian state because of the settlements. Yet the entire international community … believes that a Palestinian state must be established on the basis of the June 4, 1967 borders. There is no other solution to the conflict. Instead of dealing with that reality, the government is trying to pressure the US and the EU to transform the peace process into a regional peace process. Netanyahu, Barak and other members of the government think that if they agree to a three-month settlement freeze, not including Jerusalem, the world will consent. The EU and the US in private meetings with Netanyahu and in public statements have insisted that Israel must focus on the settlement issue and not on tricks to avoid making the difficult decisions. All settlement building must stop”…
But, what is actually happening?