21 Fall 2023 he purpose of this article is to set out the goals and arguments I had in mind by contributing to a submission to the International Court of Justice (ICJ) on the December 2022 request from the UN General Assembly for an advisory opinion about Israel.1 I was a member of the group that drafted a submission to the ICJ on behalf of B'nai B’rith International.2 Israel is the realization of the right to self-determination of the Jewish people. Anti-Zionism, which is opposed to that realization, initially took the form of armed invasion of Israel. Since the invasion failed, anti-Zionists turned to the twin strategies of terrorism and delegitimization of the Jewish enterprise ‒ the State of Israel. The December 2022 UN General Assembly Resolution (the “Resolution”) is a request to the ICJ for a second advisory opinion aimed against Israel, as part of that delegitimization campaign.3 The first opinion was the 2004 Advisory Opinion on the construction of a security wall along the border between Israel and the West Bank.4 Any delegitimization of the State of Israel is both fueled by, and the genesis for, demonization of the global Jewish population due to its actual or presumed support for the existence of a supposedly demon state. Anyone concerned about antisemitism must care about the concerted efforts to delegitimize the existence of Israel. Delegitimization occurs through the distortion and misrepresentation of international law. The delegitimization efforts against Israel must be countered citation by citation, quote by quote, reference by reference. Emotions, especially hatred, play an important role in the process of delegitimization fueling actions that are extreme and persistent against the target group. The effort to combat hatred must be as diligent and systematic as the hatred itself, as open to reality as hatred is closed to it. This requires combating hatred on every level, including on the legal terrain. The Resolution, though formally posing only two questions, raises many more issues. A review of all of them is beyond the scope of this article. To illustrate the problems posed by the Resolution, this article focuses on the question of whether Israel occupies Palestinian territory. The Resolution used the word “occupation,” or its variation, 32 times. In its previous advisory opinion on the Israel security barrier,5 the ICJ used that term 184 times. Yet, as one can see from the legal texts, the history of the region, and the facts on the ground, there is no “occupation” by Israel, as explained in the following paragraphs. Whether Israel occupies Palestinian territory is a matter of controversy. First, the view that Israel occupies Palestinian territory is not a position held by the Israeli government. It would therefore be inappropriate for the ICJ to deliberate the issue in the absence of an Israeli representative or to expect Israel to appear before the Court. As a result, the Resolution’s requests become an exercise in a non-consensual imposition of the jurisdiction of the Court upon unwilling parties. Second, the material in the Resolution, which supports a presumption that Israel occupies Palestinian territory, is in large part self-referential. The supporters of Resolution A/RES/77/247 are notorious for going from one UN agency to another and engineering the appointment of one friendly expert after another to create support for their positions. What the supporters of the Resolution assert as authority is in fact gratuitous quoting of themselves or their sympathetic colleagues ‒ it does not reflect an impartial survey of opinions conducted in good faith. Third, the parameters of Israel’s occupation are Advisory Opinion Request to the ICJ about Israel: Submission Goals T David Matas 1. UN GA Res. A/RES/77/247, Dec. 30, 2022. 2. B’nai B’rith International, Written Statement Submission, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Case No. 2023/7, Feb. 8, 2023 [2023] I.C.J. available at https://www.bnaibrith.org/wp-content/ uploads/2023/07/BBI-ICJ-Brief-7.21.2023.pdf. The B’nai Brith International submission is analyzed by Richard Heideman and Joseph Tipograph in this issue. 3. Supra note 1. 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, July 9, 2004, [2004] I.C.J. 136, available at https://www.icj-cij.org/case/131 / 5. Ibid., p. 136.
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