The European Leadership Network (ELNET) and UK Lawyers for Israel (UKLFI) have submitted a forceful, 40-page memorandum to the International Court of Justice, which is considering a case that targets Israel.
At the end of last year the UN General Assembly asked the International Court “What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination?”
To assist the Court to answer this loaded question, the UN Secretary-General has provided 29,000 pages of documents relating to Israel produced by the UN since 1967. ELNET and UKLFI’s memorandum says that this documentation is highly unreliable and the product of the UN’s longstanding anti-Israel bias.
ELNET and UKLFI argue that the Court is not in a position to give a judicial opinion in the case because the information is too unreliable.
They also say that to enable self-determination it is necessary to establish the will of the Palestinian people and to resolve critical issues (including the status of Jerusalem, security and borders) by negotiations in a political process under the Oslo Accords.
They point out that the will of Palestinians has not been clearly established. The Palestinian Authority has not held a general election since 2006. According to an opinion poll carried out by the Palestinian news agency, SHFA, in December 2021, 93% of the Jerusalem’s Arabs prefer a continuation of Israeli rule over a united city. It would appear from this that the self-determination of Arabs in Jerusalem is promoted by Israel’s exercise of sovereignty over the whole of the city.
The advisory opinion which the Court has been asked to give will not be binding. However, it will be treated by many as authoritative. If it adopts allegations defaming Israel made in the documents provided to it, these will be taken to be incontestably true, and this will promote antisemitism around the world.
The memorandum by ELNET and UKLFI notes that since 2015, the UN General Assembly has adopted 140 resolutions condemning Israel and 64 resolutions condemning all other countries in the rest of the world combined; the UN Human Rights Council has adopted 104 resolutions condemning Israel and 97 condemning all other countries combined; and the World Health Organisations has adopted 9 resolutions condemning Israel and none condemning other countries. Moreover the resolutions condemning Israel are distinguished by their harsh and one-sided content.
NGOs providing false information blaming Israel are facilitated and encouraged by the UN, while NGOs attempting to set the record straight are effectively censored at the UN by dirty tricks.
The UN’s discrimination against Israel has been recognised by its former Secretary-General Ban Ki-moon as well as in a letter signed by all 100 members of the US Senate, including strong critics of some Israeli policies such as Bernie Sanders.
ELNET and UKLFI draw attention to the fact that the International Court’s previous opinion regarding Israel’s West Bank security barrier was based on inaccurate and one-sided information provided by the UN Secretariat. This was clearly shown by an outstanding judgment of Aharon Barak, then President of Israel’s Supreme Court, in the Alfei Menashe case.
Amongst other deficiencies in the opinion of the International Court, Justice Barak pointed out that its opinion relied on a report that the caseload of the UN hospital in Qalqilya had declined by 40% as evidence that the security barrier had a dire effect on that town. But this overlooked the fact that two new hospitals had just been opened in Qalqilya, which likely affected usage of the UN hospital.
The submission by ELNET and UKLFI notes that obtaining reliable information relating to Israel presents particular problems. Centuries of libels of the Jewish people have resulted in a situation in which conclusions blaming Jews for misfortunes are readily drawn and false allegations against Jews are credulously accepted.
This prejudice is now directed against Israel as the world’s only Jewish State and has been compounded by the successful exploitation of UN bodies by members of the Organisation of Islamic Cooperation and their developing country allies to focus on criticism of Israel. The demonisation of Israel at the UN over the years was facilitated by Israel’s exclusion from regional groups, through which much of the UN’s business is negotiated. The memorandum cites the opinion of the leading international lawyer and judge, Sir Robert Jennings, that the exclusion of Israel was unlawful.
The UN General Assembly referred in its questions to “measures [by Israel] aimed at altering the demographic composition, character and status of the Holy City of Jerusalem”. It ignored the fact that the Arab proportion of the population of Jerusalem has increased from 26% to 39% since 1967. As the submission by ELNET and UKLFI observes, at most it might be said that Israel has sought, rather unsuccessfully, to maintain the large Jewish majority in Jerusalem that existed in 1967 and had existed for the best part of a century prior to 1967.
Israel has also rebuilt the Jewish quarter of the old city of Jerusalem and reconstituted the Jewish community there. In doing so Israel restored the character of the old city that existed prior to the destruction of this quarter and the ethnic cleansing of this historic community in 1948.
While the UN Secretariat sent over 29,000 pages of documents to the Court, it did not send documents prior to 1967. It treated the relevant history as starting when Israel invaded Palestine in 1967, as they appear to see it. As a result, the material provided by the UN does not do justice to the rights and claims of Israel and the Jewish people.
In the hope of mitigating this deficiency, the ELNET/UKLFI submission summarises the history of the Land of Israel from ancient to modern times and discusses the rights of the Jewish people recognised or granted by the League of Nations Mandate for Palestine and continued by Article 80 of the UN Charter.
It also refers to the right of Israel, as the only State formed out of the Mandate for Palestine in the territory west of the Jordan, to claim the whole of this territory in accordance with the doctrine of Uti Possidetis Juris. At the same time, it affirms that borders and other issues are matters to be determined in final status negotiations under the Olso Accords.
The submission draws attention to the vision expressed by the Arab leader, Emir Feisal, in 1919, that Zionists and Arabs would work together to develop Palestine and other parts of the Middle East. It notes the progress made with the Abraham Accords in recent years and that Israel is ready to reach agreements with its neighbours whenever the opportunity presents to realise Emir Feisal’s vision.
The submission concludes that the International Court should decline to answer the questions asked by the UN General Assembly. However, if the Court decides to answer the questions, it should advise the General Assembly that:
there is no ongoing violation by Israel of the right of the Palestinian people to self-determination;
Israel has not adopted measures aimed at altering the demographic composition or character of Jerusalem and is entitled to exercise sovereignty over the united city;
in order to realise self-determination of the Palestinian people in east Jerusalem, the West Bank and the Gaza Strip, Israel and Palestinian leaders must ascertain the will of the Palestinian people in these areas and must negotiate in good faith to resolve remaining issues in a manner that accommodates the rights of Israel and the Jewish people as well as the rights of the Palestinian people;
the Court is not able to advise as to the existence (or otherwise) and legal consequences (if any) of alleged discriminatory legislation and other measures since these are not specified in the questions.