Even the most sacred precepts of international law can be manipulated to R e pervert the truth. In its Advisory Opinion of 9 July 2004, the UN's Interna- p tional Court of Justice ruled that Israel's security fence to protect civilian l y populations from barbarous terror was in violation of international law. The ICJ ruled that the inconvenience of the fence for Palestinians was more serious than the lives of COURT OF JUSTICE TO THE INTERNATIONAL ADVISORY OPINION, 9 JULY, 2004 Jewish children systematically murdered by Palestinian terrorists. An informed “Reply” to this jurisprudential mockery by the World Court has been prepared by Eli Hertz of New York City. Not a lawyer, Hertz applied his considerable intellectual talents to a meticulously researched and academically refined rejoinder - one that should be read not only by the members of the Court and other UN officials, but also by the broader community of international law scholars. Eli Hertz has prepared an important and valuable document for all who would seek justice and fairness in our corrupted legal universe. It deserves a wide and very careful reading. Louis Rene Beres (Ph.D., Princeton University, 1971, International Law) Professor of International Law, Purdue University TO: THE ADVISORY OPINION OF 9 JULY 2004 The ICJ advisory opinion on Israel's security fence was a legal travesty denying the people of Israel their IN THE MATTER OF THE inherent right to self-defense and, at the same time, ignoring their historical national rights that the UN and the League of Nations once readily recognized. Eli Hertz has done an enormous service by providing a cogent LEGAL CONSEQUENCES OF THE point-by-point rebuttal and, by doing so, not letting this terrible document stand without a reply. CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY Ambassador Dore Gold Former Permanent Representative of Israel to the United Nations AS SUBMITTED BY THE INTERNATIONAL COURT OF JUSTICE About the author Eli Hertz is the President of Myths and Facts, Inc. a nonprofit organization devoted to research and publica- tion of information regarding U.S. global interests - particularly in the Middle East. Hertz published and No distinction rests between genocide and sponsored books and articles regarding the Arab-Israeli conflict. Most notably are “Partners for Change, How U.S.-Israel Cooperation Can Benefit America” (1993), “Myths and Facts, a Guide to the Arab-Israeli conflict” the undoing of the State of Israel by the (September, 2001 edition), and “Who is Humiliating Whom.” A new volume on the Arab-Israeli conflict International Court of Justice at the Hague. “Negotiating Over Quicksand - A Realistic Look at the Arab-Israeli Conflict,” is scheduled for release shortly. To suggest denying Israel’s right for self- Hertz is also a recognized pioneer in the personal computer industry. He has authored and published many defence in favor of Palestinian terrorism, is a technology-related articles and books. Marketing Computers, an ADWEEK magazine, stated “Hertz is a barometer for the future.” Hertz is actively involved in numerous international, industry and community crime against humanity. associations and panels, and devotes a great deal of time and resources to charity. Eli E. Hertz E. Eli Eli E. Hertz This publication uses Internet links extensively. If you January 2006 experience a broken link, please note the 5 digit number 2006 (xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com, the primary Search Engine for Middle East facts. Myths Enhanced Edition US $ 14.95 and Facts Myths and Facts, Inc. Myths and Facts, Inc. | PO Box 941 | Forest Hills, NY 11375 | www.MythsandFacts.org NY New York SPINE Eli Hertz Reply 11-6-05c 11/6/05 5:41 PM Page 2 To my wife Marilyn and my children Etie, Mala and Danny, thank you for your love and support Copyright © 2005, 2006 Myths and Facts, Inc. and Eli E. Hertz All rights reserved. Parts of this publication may be reproduced with attribution for non-commercial use and as citation. For all other purposes a prior written permission of the publisher must be obtained. Published by: Myths and Facts, Inc. PO Box 941, Forest Hills, NY 11375 Myths and Facts, Inc. is a tax-exempt organization under section 501(c)(3) of the Internal Revenue Code (“IRC”) and all contributions to it are deductible as charitable contributions. www.MythsandFacts.org eMail Address: [email protected] Library of Congress Catalog Number: 2005921657 ISBN 0-9741804-1-6 Printed in the United States of America Eli E. Hertz, Editor-in-Chief, Writer and Publisher Daniella Ashkenazy, Chief Researcher and Writer Cover design by Nick Moscovitz Maps by Eli E. Hertz Eli Hertz Reply 11-6-05c 11/6/05 5:41 PM Page 3 Table of Contents Preface ........................................................................................................5 Introduction ...............................................................................................7 1 Testimony Testifying Against Israel..................................................13 Who was allowed to present briefs and who was denied? 2 The “Mandate for Palestine” Document ..........................................25 Is the Mandate for Palestine calling for a Jewish homeland in Palestine or is it the founding document for Palestinian self-determination? 3 Jerusalem and the Holy Places..........................................................41 Jerusalem is cited 54 times in the Opinion. What is the City of Peace connection to the ‘Wall’? 4 Resolution 181 – the “Partition Plan”..............................................51 Is the 1947 UN “Partition Plan” relevant? 5 Self-Defence .....................................................................................69 The Right to Self-Defence and Lawful Use of Force 6 Terrorism..........................................................................................79 Was UN Resolution 1377 that calls terrorism “… the most serious threats to international peace and security” ignored by the Court? 7 ICJ Attempts to Brand Israel the Aggressor......................................93 Are Israel’s actions what the UN defines as aggression? 8 UN Security Council Resolutions 242 and 338................................97 Is Israel an “Unlawful Occupier” based on UN Security Council Resolutions? 9 Territories – Legality of Jewish Settlements....................................101 Was this issue part of the Court’s mandate? 10 The Supreme Court of the State of Israel.......................................121 Was the use of rulings by the Supreme Court of the State of Israel manipulated by the ICJ? 3 Eli Hertz Reply 11-6-05c 11/6/05 5:41 PM Page 4 R EPLY – E LI E. HERTZ 11 Arab Consistent Behavior and Precedent for Fencing.....................129 Was fencing an acceptable temporary and non-political action against Arab terrorism during nearly three decades of British Mandate? 12 Self-Determination.........................................................................135 Do Palestinian ‘rights to self-determination’ include ‘territorial rights’? 13 The International Court of Justice’s Mandate.................................141 The Court’s opinions need to be applied “… in accordance with international law … accepted as law … principles of law … rules of law.” Was this followed? 14 Epilogue .........................................................................................149 15 Appendix A: The League of Nations “Mandate for Palestine”........153 Appendix B: UN Resolutions Regarding Terrorism: 1269, 1368, 1373, and 1377 .....................................162 Appendic C: UN Resolutions 242, 338, and 1515 .........................170 Appendix D: UN Resolution 2625.................................................173 Appendix E: UN Resolution 3314 – Defining Aggression.............176 Appendix F: Article 22 – Covenant of the League of Nations.........180 Appendix G: The PLO Charter ......................................................182 Appendix H: The FATEH Constitution .........................................186 Appendix I: ICJ Advisory Opinion, 9 July 2004.............................189 Index ......................................................................................................247 Maps: 1. Mandate for Palestine...........................................................................24 2. UN Recommended “Partition Plan”.....................................................50 3. Border Changes As Arabs Initiate Wars of Aggression........................100 4 Eli Hertz Reply 11-6-05c 11/6/05 5:41 PM Page 5 P REFACE Preface “After a sharp rise in Palestinian terror attacks in the spring of 2002”1 the Government of Israel called for the construction of a barrier in parts of the West Bank. On October 21 2003, the UN General Assembly adopted Resolution ES-10/13, that among others: “Demands that Israel stop and reverse the construction of the wall in the Occupied Palestinian territory, including in and around East Jerusalem.” On November 24 2003, the UN General Assembly adopted Resolution ES-10/248, concluding that “Israel is not in compliance with the Assembly’s demand that it ‘stop and reverse the construction of the wall in the Occupied Palestinian Territory.’”2 On December 3 2003, the UN General Assembly adopted Resolution ES-10L.16, to [among others] “request the International Court of Justice ... to urgently render an advisory opinion” on the legal conse- quences arising from the construction of the wall being built by Israel.