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BOOK REVIEW: ‘The Hague Odyssey’
In 2002, following the outbreak of the Palestinian intifada and its onslaught of terrorist attacks against Israeli citizens, to protect itself Israel began constructing a security and separation barrier — also known as a “terrorism-prevention security fence” — along and within the West Bank. Upon completion, the barrier, most of it built along the 1949 Armistice Lines (or “Green Line”) — is expected to be more than 400 miles in length. Since the security fence’s erection, it has been responsible for substantially reducing the ability of Palestinian terrorists to enter Israel. It is expected to be temporary as opposed to demarcating a final border with the Palestinians, with the final borders subject to a peace process’s negotiations.
Richard Heideman’s “The Hague Odyssey: Israel’s Struggle for Security on the Front Lines of Terrorism and Her Battle for Justice at the United Nations” is a highly authoritative, international law-based account of the Palestinian-initiated United Nations resolution that led the International Court of Justice (ICJ) in The Hague to issue a legally faulty, highly politicized and unjust advisory opinion in 2004 that “Israel cannot rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of the construction of the wall.” The ICJ also wrongfully asserted that “the construction of the wall, and its associated regime, are contrary to international law.”
Mr. Heideman, a prominent Washington attorney and major figure in Jewish-American public affairs, played a leading role in delegations to United Nations bodies where Israeli issues were discussed, such as the highly contentious and widely criticized U.N. World Conferences Against Racism in 2009 and 2011, making him ideally suited to critique how Israel has been treated by the ICJ and other U.N. organizations.
The book’s main thesis is that Israel’s adversaries have utilized various U.N bodies to wage concerted and systematic attacks on Israel’s sovereignty and the rights of the state of Israel “as a nation-state of the world,” thereby posing “a serious active threat to Israel’s overall security.” A major component of these persistent attacks on Israel, Mr. Heideman writes, “has been the vitriolic politicization of Israel’s construction of a terrorism-prevention security fence built in direct response to the second intifada’s repeated heinous and murderous [terrorist] attacks upon her population, cities and general welfare.” The “epicenter of this assault,” he adds, has been at the United Nations, with the largely pro-Palestinian General Assembly referring to the ICJ for an “advisory opinion” on the supposed illegality of the security fence and barrier that Israel had been constructing to safeguard the security of its citizens against the continuous Palestinian terrorist attacks.
Making the ICJ’s various “advisory opinions” filled with “numerous procedural and substantive defects,” according to Mr. Heideman’s account, is that it improperly exercised jurisdiction over an issue that did not take into account the aggression mounted by Palestinian terrorism and Israel’s right of self-defense against it. He says the latter is “an inherent right recognized and codified in Article 51 of the U.N. Charter,” and that this issue, to begin with, “was rife with political determinations that have no place in a proper legal opinion, albeit advisory, prior to completion of the required and contemplated agreements resulting from direct negotiations between the parties to establish borders and resolve the other core issues in controversy between the parties.”
Following a detailed discussion of attempts by Israel over the years to reach a peace accord with the Palestinians, Mr. Heideman devotes most of the book to an explanation of the security fence’s origins and how it has been judicially approved by Israel’s independent and highly respected High Court of Justice (with Israeli governments over the years respecting its decisions to reroute the fence’s path when it conflicted with Palestinian land use). He concludes with a detailed critique of the ICJ’s impropriety and lack of jurisdiction to issue an advisory opinion on the security fence.
Especially pertinent is Mr. Heideman’s discussion of how the ICJ also deliberately ignored in its consideration of the Israeli fence legal facts regarding other countries’ unilateral construction of security fences and barriers, such as Egypt, India, Saudi Arabia and Turkey, noting that “None, however, have faced the level of international criticism and unfair bias and discrimination that Israel’s terrorism-prevention security fence has endured.”
Even though the ICJ’s advisory opinion is not legally binding, Mr. Heideman notes that its “opinion” has been “compromised by the external results it causes,” including potentially being accepted as “customary international law.” As a result, Israel faces a constant threat of individual states imposing sanctions on it for the construction of the security fence, “including the threat of arrest on war-crime charges and acts against humanity for Israelis who have participated in the construction of the barrier.”
Making Mr. Heideman’s book especially pertinent to American counterterrorism is that such threats of arrest over “war-crime” charges (however flimsy and hypocritical) are also worrisome because they are not limited to Israelis, but could potentially be used by al Qaeda’s supporters to “legally” target American counterterrorism fighters for involvement in targeted killings of al Qaeda leaders, including the use of drone strikes against them.
Mr. Heideman concludes that it’s “essential and morally right that all human rights respecting and freedom-loving countries stand together at the United Nations, in both words and deeds, to take an affirmative stand against terrorism and against the attempt to deny Israel’s right to defend herself and her people.” This important book provides the legal arsenal to do just that.
Joshua Sinai is a Washington-based consultant on counterterrorism studies. He is the author of “Active Shooter: A Handbook on Prevention” (ASIS International, 2013).
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