The Hague Odyssey: Israel's Struggle for Security on the Front Lines of Terrorism and Her Battle for Justice at the United Nations

By Richard D Heideman

When the State of Israel came into existence in 1948, its very legitimacy as a nation was immediately challenged, often by the same people who questioned the rights of the Jewish people to live at peace on their own land. Yet since its independence, Israel has stood out as a nation with a truly democratic form of government surrounded by countries and peoples mostly ruled by tyrants and despots.This has led to wars, border skirmishes and other assaults against Israel. This reached a pinnacle with the steady terrorist assaults against innocent civilians known as suicide bombings. Instead of condemning these attacks, many ignored the inhuman brutality or even worse, glorified the Palestinian Arab perpetrators as martyrs.One of the favored forums for attempts to isolate Israel is at the United Nations. Rather than empathy for the Jewish victims of terrorist attacks, the UN has repeatedly excoriated Israel for its actions toward the Palestinians, ignoring the fact that most of the Palestinian people lived in areas controlled by their own Arab leaders.As a result of the onslaught of the Second Intifada, Israel planned and began the construction of a terrorism prevention security barrier. Built roughly between Israel and the Palestinian territories, Israeli leaders made clear that it was not an attempt to create a border and preempt negotiations, but solely for the purpose of defending and protecting her people.There have been a number of objections from Palestinians, with support from some Israelis, who felt that they were unduly burdened by the barrier. Many of these complaints were lodged with Israel's vibrant and independent court system. Instead of rubber-stamping decisions, courts looked at each situation and in some cases have ordered that the route be changed or altered.In 2004, Israel's detractors at the UN, who refused to even recognize the right or need for Israel to be able to protect its citizens, saw another avenue to demonize the state. Defying its own charter, the UN General Assembly requested of the International Court of Justice at the Hague an advisory opinion about the security fence and its applicability under international law, some calling it an apartheid wall. Few people around the world were even aware that such an important tribunal was looming . Fewer still seemed to understand the potential difficulties it might cause for Israel and other countries desiring to protect their own citizens from terror attacks. One who immediately understood the danger if Israel was not allowed to adequately defend its citizens was Richard D. Heideman. An internationally known attorney, former President of B'nai B'rith International and advocate for the rights of victims of terrorism both in the US, in Israel, in Lebanon and in Europe, he understood how vulnerable innocent civilians would become under such limitations. Heideman filed the only brief on behalf of a non-governmental organization, the Foundation for the Defense of Democracies. He forcefully laid out the case to the ICJ for Israel's right, and obligation, like every nation-state, to provide for the defense of her population. At the same time, he served as lead counsel at hearings held at The Hague, highlighting the victims and their suffering. We follow Heideman's meticulous and passionate defense of Israel's right to defend its people. He complements his arguments with sharp, insightful analysis of the Court's eventual negative and, some would say, inevitable ruling. and is sure to be essential reading for any contemporary discussion of the Arab-Palestinian-Israeli conflict and the questionable ability of the United Nations to have a positive role in achieving a just and secure Israel.

• Language: English
• Publisher: Bartleby Press
• Release date: Apr 5, 2013
• ISBN: 9780935437447

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Acknowledgements

I have devoted a good part of my adult life advocating on behalf of victims of tragedy and acts of terrorism. Before I give thanks to the people who helped make this book possible, I would like to pay tribute to my parents, Marion and Ted Heideman and to my father in law, Max D. Greenberg, all of blessed memory, and to my mother in law, Esther Greenberg. Without their lifelong guidance and wisdom I may never have understood the meaning of true commitment.

I wish to express special thanks to my wife, Phyllis Greenberg Heideman and to our daughters, Stefanie, Elana and Ariana. They not only provide me with constant love, support and encouragement, but have worked tirelessly to help me complete this work.

My law partners, Noel J. Nudelman and Tracy Reichman Kalik, continually offered valued counsel, commentary and advice for this volume—as they do in all matters for our clients. It is a privilege to work together with them as we seek the pursuit of justice.

Without the immeasurable efforts of my legal assistant, Keyauna Chase Fogle, this book could not have been completed. In addition, I am grateful to all those who have worked diligently in the research and editing of The Hague Odyssey: Lauren Posten, Jacqueline Kaufman, Matthew Apfel and Faye Eisen. Finally, thanks to my publisher, Jeremy Kay, and the staff at Bartleby Press for their assistance in bringing this work to publication.

Preface

Every Nation-State has the inherent right to defend her people. The principle of self-defense has been a long-standing principle under international law and is enshrined in Article 51 of the UN Charter. Yet in this world of dangerous places, and living in a dangerous neighborhood, the State of Israel among all nations is held to a double standard at the United Nations and in world opinion. Steadfast in her obligation to defend her people, she has taken the necessary steps to do so, yet receives constant international criticism for protecting her citizens from violent attack.

At a plenum of Israel’s parliament, the Knesset, Prime Minister Benjamin Netanyahu emphasized that this paradox which Israel faces is not only an obstacle to Israel’s internal security, but also a targeted attack on Israel’s very existence, stating The international battle against Israel began in UN Durban Conference I, and continued in the … ICJ advisory opinion against the security fence and in the Durban Conference II, as well as the Goldstone Report. Netanyahu emphasized that, this is a comprehensive attack, not on a specific Israeli government but on the State of Israel.¹

This systematic attack on Israel’s sovereignty must be taken quite literally as a concerted and ongoing attack on the rights of the State of Israel as a nation-state of the world and as a serious active threat to Israel’s overall security.

One of the major components of this ongoing attack on Israel 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 attacks upon her population, cities and general welfare. The epicenter of this assault has been at the United Nations and reached feverous heights when, at the request of the Palestine Liberation Organization (PLO), and certain member states of the UN, the United Nations General Assembly (UNGA or General Assembly) referred to the International Court of Justice (ICJ) a request for an advisory opinion as to certain questions presented by the PLO and her governmental allies. The International Court of Justice sitting at The Hague, over Israel’s objection, determined that it had the jurisdiction to issue an advisory opinion concerning Israel’s construction of the barrier and subsequently issued a far-reaching advisory opinion. The International Court of Justice’s highly politicized advisory opinion has largely redefined and restricted the legal mechanisms that could be available to countries under terrorist threat. It has also raised implications for Israel’s borders and surely will be a future centerpiece of debate relating to the long elusive permanent peace between The State of Israel and the Palestinian people.

Prime Minister Benjamin Netanyahu further declared before the Joint Session of the US Congress in 2011, The precise delineation of [a future Palestinian state’s] borders must be negotiated. We will be very generous on the size of a future Palestinian state. But as President Obama said, the border will be different than the one that existed on June 4, 1967. Israel will not return to the indefensible lines of 1967.²

The construction of the fence and barrier designed to keep the terrorists out has regrettably caused hardship upon the lives of both Palestinians and Israelis living near the fence line and has resulted in much harsh criticism of Israel. However, when the issues are analyzed in context with applicable substantive law, free of political overtones, the reality becomes clear that Israel’s terrorism prevention security fence has indeed saved lives—meeting an essential obligation of any country to its citizenry. For Israel, this responsibility carries special significance. As Netanyahu further declared on May 24, 2011 before the United States Congress, As for Israel, if history has taught the Jewish people anything, it is that we must take calls for our destruction seriously. We are a nation that rose from the ashes of the Holocaust. When we say Never Again, we mean Never Again.³

Canadian Prime Minister Stephen Harper, a leading public voice on issues of human rights and respect for the rule of law, eloquently characterized the universal values Israel has portrayed in her struggle for freedom and democracy when he stated:

All of my life, Israel has been a symbol—a symbol of the triumph of hope and faith. After 1945, our battered world desperately needed to be lifted out of post-war darkness and despair… It was the people who had suffered who most provided that inspiration. By their example, they led the world back to the light… Their pilgrimage was the culmination of a two-thousand-year-old dream; it is a tribute to the unquenchable human aspiration for freedom, and a testament to the indomitable spirit of the Jewish people…

…But the source of Israel’s strength and success, in my view, is its commitment to the universal values of all civilized peoples: freedom, democracy, human rights and the rule of law….There will be many challenges along the way, but considering how far Israel has come in such a short time, in the face of such seemingly insurmountable odds, I can foresee no dark force, no matter how strong, that could succeed in dimming the light of freedom and democracy that shines from within Israel.⁴

When all is said and done, what is undeniable is that Israel is entitled, like every country, to live forever—in peace and security, free from terrorist attack. To deny her that right denies, at the minimum, basic principles of international law and the foundations upon which freedom, democracy and justice are built.

Introduction

As a result of the ongoing terrorism against and murder of Israeli citizens, the State of Israel has over the past decade built a terrorism prevention security fence as a defensive measure designed to keep terrorists out of the state. Throughout its history but most dramatically since the commencement of the Second Intifada in late September 2000, Israel has endured an onslaught of violent terrorist attacks initiated by infiltrators—primarily Palestinians—funded, supported, aided, assisted and enabled by those who encourage and sponsor terror, leaving Israel’s citizens and visitors murdered and maimed.

Under international law, Israel has both the right and the obligation to defend itself as a sovereign nation-state within recognized borders. Israel has repeatedly demonstrated its willingness to make concessions for peace with Egypt, Jordan and with the Palestinians at Madrid, at Oslo, at The White House, at Wye River, in the Hebron Accords, by approving the Roadmap, by completing its unilateral disengagement from the Gaza Strip, at Annapolis, in repeated statement at the United Nations and in public calls to the PLO for the parties to convene discussions on final status agreement core issues. However, the Palestinian record, in contrast, evidences a habitual retreat to terrorism and the threat of terrorism, employing the politics of fear and assault and making the construction of the security fence necessary for Israel to protect her people and those from throughout the world who visit Israel including Jerusalem and the holy places.

While the route of the security fence is a topic of dispute, the dramatic reduction in the number of terrorist attacks within Israel since the fence’s construction is incontrovertible. In spite of this reduction and the proven reason for its necessity, Israel has been wrongly accused of intending to and committing an apartheid-like separation between Israel and the Palestinians in constructing the security fence zone between Israel and the Palestinian Territories.

Israel’s High Court of Justice has considered the legal issues surrounding the building of the terrorism prevention security fence in cases brought by aggrieved Palestinian residents as well as human rights groups. In an extraordinary display of judicial independence and in the spirit of a true democracy, on June 30, 2004 the Israeli High Court of Justice, which is Israel’s Supreme Court (Israeli Court, High Court, Supreme Court or HCJ), ordered that the security fence be rerouted. Subsequent Israeli High Court decisions, including the recent December 2012 decision, have also ordered modifications to the route of the barrier, mandating that the Israeli Defense Forces (IDF) relocate portions of the fence and barriers.

Notwithstanding the Israeli High Court decision and without giving judicial deference to the opinion rendered by the highest court of the country, the State of Israel, with jurisdiction over the legal issues relating to the security fence, the International Court of Justice, sitting at the Hague, rendered an advisory opinion ten says later on July 9, 2004 acting on a request by resolution of the United Nations General Assembly regarding the legal consequences arising from the construction of the wall being built by Israel…⁵ The advisory opinion was issued despite strong objections by Israel, the United States, and many other countries regarding the ICJ’s acceptance of jurisdiction of the question referred to the Court.⁶

In essence, the advisory opinion, which is non-binding and lacks the force of law or of an enforceable Judgment, advised that Israel must cease construction of the fence, pay reparations to affected Palestinians and determined that the security fence was in violation of international and humanitarian law. The mere existence of the advisory opinion has inappropriately been and surely will continue to be cited as precedent and is likely to have a future detrimental effect on democratic processes, the negotiations between Palestinians and Israelis and will moreover likely have a negative impact on all UN member states in pursuit of effective means to protect their citizenry from terrorist attacks by infiltrators into their society.

The ICJ’s issuance of the advisory opinion suffered from numerous procedural and substantive defects that cast a shadow on the Court’s opinion. Firstly, the ICJ improperly exercised jurisdiction over the issue. Notably, the ICJ failed to justly acknowledge the waves of Palestinian terror which necessitated construction of the security fence in the first place or the repeated violations by the Palestinians of their agreements with Israel and of various UN resolutions. Most importantly, while emboldening Palestinian terror attacks threatened and committed under the guise of freedom fighting, the ICJ attempted in effect to eradicate Israel’s right to self-defense, an inherent right recognized and codified in Article 51 of the UN Charter. As this author stated in his brief filed on behalf of the Foundation for Defense of Democracies (FDD) with the Clerk of the International Court of Justice in opposition to the pending question before the ICJ, The State of Israel, as any other sovereign nation-state that is a member of the United Nations and the family of nations, is entitled and obligated to protect and defend her people.⁷

In addition, the question referred to the Court 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. Inappropriately adopting the language of the question submitted to it by the United Nations General Assembly, the Court calls Israel’s terrorism prevention security fence a wall (which is a concrete barrier for approximately five percent of its length and located mostly in strategically dangerous areas used by terrorist infiltrators) and uses terminology such as occupying power and occupied Palestinian territory that prejudge contested issues of international law.⁸ The advisory opinion was issued without a full consideration of the legal history between the parties, the agreements between them and the truthful evidence existing on the ground; all the while ignoring the legal and factual context and justification for the essential need for the security fence considering the realities of the controversy and the murderous assaults launched upon Israel by the very terrorists which the security fence is designed to stop.

Since the advisory opinion’s publication in the summer of 2004, the security fence has become a lightning rod for Israel’s critics seeking to further demonize and delegitimize the very standing and existence of the Jewish state. These critics call the fence an apartheid wall and liken it to the Berlin Wall—wholly ignoring the fence’s proven effectiveness in preventing suicide bombings and other deadly attacks. The opinion has been cited in numerous UN reports and referenced in committee meetings.⁹ Indeed, on the fifth anniversary of its issuance, UN officials and the Palestine Liberation Organization and its Palestinian Authority called on Israel to tear down the wall in accordance with the advisory opinion.

Neither the UN General Assembly nor any country or organization has any authority to attempt to convert the advisory opinion to binding law or to seek its enforcement. Politicized attempts to do so fly in the face of due process and applicable international law. Ultimately, no ruling, resolution or even an advisory opinion of the International Court of Justice can interfere with a nation’s rights and obligations to defend her citizens; nor any citizen’s right and entitlement to be defended by her country.

Chapter One:

The Arab-Israeli Conflict and The Role of United Nations

On November 29, 1947, the passage of General Assembly Resolution 181 set the stage for the emergence of two nations, one Jewish and one Arab, in the territory formerly subject to the British Mandate over Palestine (Partition Resolution).¹⁰ Israel accepted the resolution while the Arab world fiercely rejected it. Seven months later, on May 14, 1948, the British Mandate ended and the State of Israel declared its independence within the territory designated by Resolution 181. The same day that Israel declared its independence it was recognized as a government and independent state by the world’s great powers and countries throughout the world committed to respecting and applauding the legal establishment of the State of Israel. However, Egypt, Jordan, Syria, Lebanon and Iraq, rejecting even the concept of the existence of the independent Jewish state, launched an immediate war of aggression against the newly created Jewish state of Israel. These combined powers were defeated in what is now termed Israel’s War of Independence. Israel was subsequently admitted as a member-state to the body of the United Nations in 1949.

The UN Partition Resolution essentially divided into portions, one to be Jewish, and one Arab, land that was formerly the ancient home of the Jewish people in Judea and Samaria and including land that had come to be known as Palestinia including Trans-Jordan and lands previously occupied by the Ottoman Turks and others who had invaded and conquered the land over thousands of years.¹¹ The Jewish people have resided in ancient Judea and Samaria for thousands of years with Jerusalem at the site of the First Temple, the Second Temple and a rich religious and cultural ancestral heritage. In adopting the Partition Resolution, the United Nations sought to secure and indeed guarantee for the Jewish people their rightful return to their ancient homeland, while respecting the rights of other peoples who had lived in the areas under the British Mandatory Period and who were living in the partitioned areas, including Jerusalem, at the time of the adoption of the UN Partition Resolution (Resolution 181). Despite Resolution 181’s text and intent, no corresponding Arab nation arose. Instead, those portions of the land partitioned by the UN Resolution which was referred to as Palestine and in ancient Judea and Samaria that did not become part of Israel, which includes the West Bank and Gaza, became occupied during the War of Independence, first, by Iraq and then by Jordan.

Jordan annexed the West Bank in 1949 and remained in control of the West Bank until such time as King Hussein of Jordan unilaterally relinquished control over Trans-Jordan in 1988.¹² The ensuing period saw Israel develop a government, communities and cities, kibbutzim and moshavim and an exciting period of statehood building. Subsequently, Israel endured wars with her neighbors in 1956, 1967 and 1973 and vicious terrorist attacks upon Israelis both at home and abroad.

Prior to the 1967 Six Day War, Jerusalem was a divided city, with west Jerusalem under the control of Israel and east Jerusalem under the control of Jordan. In the 1967 Six Day War, Israel was attacked from all sides and pushed Egypt’s armies out of the Sinai and back to Cairo, Syria’s armies almost back to Damascus, after which it took control of the Golan Heights overlooking Israel’s Sea of Galilee. Israel also pushed Jordan’s armies back to Amman and out of the area of Jerusalem, the Jordan Valley, Judea and Samaria. Israel annexed Jerusalem, uniting the city, and subsequently endured another war in 1973, the Yom Kippur War.

Since 1967, Israel has administered the Palestinian Territories turning over selected areas to the Palestinian Authority (PA), an organization which was created by the Palestine Liberation Organization in accordance with various agreements reached during and following the Oslo Accords period in 1992-94 (PA), and subsequent agreements reached in the Wye River and Hebron Accords in 1998-99. Israel also unilaterally withdrew from Lebanon and subsequently from Gaza and has turned over to the Palestinian Authority security and other functions for certain areas within the West Bank and Gaza (the Palestinian Territories) as Israel reached agreements or made unilateral or bilateral determinations that the PA was capable of providing and assuring Israel of security in those areas.

No other international issue has singularly preoccupied the United Nations more than the Arab-Israeli conflict. The conflict has been the subject of innumerable resolutions in both the Security Council and the General Assembly. Indeed, from 1964 to 1988, the UN Security Council passed 88 resolutions against Israel, the only democracy in the region, while the UN General Assembly passed more than 400 such resolutions against Israel.¹³ It is shameful that during, for example, its 61st Session (2006-2007), the General Assembly enacted 22 anti-Israel resolutions and nary a single resolution on Sudan’s genocide in Darfur.¹⁴ Following that, during its 62nd Session (2007-2008), the General Assembly enacted 19 anti-Israel resolutions, typical of subsequent years.¹⁵ In the 2012 session of the UN General Assembly, 22 anti-Israel resolutions were passed and only four addressing the rest of the world (1 each regarding Syria, Iran, North Korea and Burma), according to UN Watch. These anti-Israel resolutions do not count the additional resolutions enacted against Israel by the UN Human Rights Council or its predecessor UN Commission on Human Rights.

As the number of resolutions against Israel has continued to grow, it has become more and more clear that the UN which functions in the General Assembly on the basis of one country one vote is being used as a vehicle engineered by mostly non-democratic states, many of which have no diplomatic relations with Israel, and some of which maintain a formal state of war against Israel, to publicly hold up for ridicule the democratic State of Israel while covering up or excusing the violence and terrorism of its own regimes and authoritarian neighbors. This double standard prevents the UN from acting as a fair and impartial facilitator and makes it more difficult to resolve the ever-present issue of finding a lasting peace between the Arab Palestinians and the State of Israel. Moreover, in its attempt to appear impartial, the UN has applied a concept of proportionality—inappropriately equating the severity of attacks and the measure of a response.16

In the now heavily criticized and discredited Goldstone Report, adopted by the UN in 2009 and fully embraced by Israel’s enemies, Israel was accused of war crimes due to its responsive attack on Hamas, a Foreign Terrorist Organization (FTO) that has control in Gaza, and which repeatedly launched missiles into Israel, requiring a strong defensive counter assault by Israel. Israel’s responsive actions in 2008 during Operation Cast Lead, and again in 2012 during Operation Pillar of Defense, were part of a concerted effort to put a stop to the dangerous continued launching of thousands of rockets fired from Gaza into Israel proper. Despite its subsequent retraction by Judge Goldstone, who has essentially said that if he knew then what he knows now he would not have issued the Goldstone Report at the UN, these libelous accusations have done significant damage to Israel’s reputation, sanctioned by the UN and embraced by both country opponents and others who have fashionably taken to accusing Israel of human rights violations. Yet, in 2012, not one UN General Assembly resolution was passed against Hamas for its thousands of Gaza based terrorist missile launchings against the sovereign State of Israel.

Instead of constantly attacking Israel, without simultaneously addressing the necessity of Israel’s responses to Palestinian terrorism, the United Nations has done a gross disservice to Israel, to the region and to humanity by its failure and refusal to hold Palestinian terrorist organizations operating within or under the often blind eye of the PLO and its PA responsible for their acts of murder, maiming and constant threat of terrorist attacks upon Israel. The UN would best serve the interests of peace and the affected parties by returning to its proper role as a constructive, impartial and thoughtful actor in pursuit of true peace and security as a means of solving the Arab-Israeli conflict.

Chapter Two:

The Violence and Attempts at Achieving Peace Between Israel and the Arab Palestinians

Despite the oft-stated stated desire among both the Arab Palestinians and the Israelis for coexistence and achieving a meaningful peace, violence between Israel and Arab Palestinians has been a fixture of the Arab Palestinian-Israeli relationship since Israel’s independence in 1948. In recent years, terrorist violence has continued unabated upon Israel. From repeated rocket barrages emanating from Gaza and also those launched by Hezbollah based in Lebanon on Israel’s northern border, and continuing through the recent November, 2012 heavy missile launchings from Gaza, to bus and suicide bombings in Jerusalem and elsewhere in Israel, various terrorist groups, including Hamas, Hezbollah, Palestinian Islamic Jihad and the Al-Aqsa Martyrs Brigade, continue to operate from bases/havens in and/or with the support of Iran, Lebanon, Syria, Gaza and the West Bank and from within areas that are under the responsibility of the Palestinian Authority, which was created by and is under the control of the Palestine Liberation Organization. Moreover, the heavy support of the Islamic Republic of Iran and the Syrian Arab Republic, each having been designated by the US Department of State as the worst sponsors of terrorism in the world, provided to Hamas, Palestinian Islamic Jihad and Hezbollah, including munitions and both short and long range heavy missiles, have continued to threaten Israel to this day and on many fronts.

These groups have a long standing and continuing single aim: to push the Israeli state into the sea through acts of heinous violence. Understandably, the Government of Israel views these terrorist groups and their operations as a threat to both the safety of all Israelis and her visitors and the overall security of the nation. Israel has not relied on defensive tactics alone in combating this threat to its existence. Israel’s military has taken both preemptive and reactive actions within and upon Gaza, the West Bank and other areas from which these terrorist threats emanate in an attempt to neutralize the ongoing threats and realities of attacks upon the Israeli people and those visiting or doing business in the country.

Acts of violence committed by terrorist organizations within Israel and Israel’s actions to neutralize and respond to terrorist threats have resulted in death and grave injury to Arab and Israeli civilians alike. During and after the Second Intifada—70 percent of Israelis killed during the period spanning September 2000 through November 2006¹⁷ were non-combatants.¹⁸ Additionally, from September 2000 to September 2002 during the height of the Second Intifada, almost 50 percent of Palestinian fatalities were combatants or non-combatants killed by Palestinians themselves.¹⁹ The lives lost in 2008 in Gaza and again in 2012 are tragic and were surely avoidable but for the repeated rocket launches by Hamas and other terrorist groups determined to attack Israel and in spite of repeated ceasefires.

Although terrorism has been in the last decade officially rejected by the United Nations as a means of achieving political ends, particularly when directed against civilians, the UN has failed or refused to take actions to protect the Israeli people from terrorist attacks. In Resolution 57/27 of January 15, 2003, the General Assembly reaffirmed its commitment in the Declaration on Measures to Eliminate International Terrorism.²⁰

Nevertheless, in spite of its adoption of this resolution and declaration specifically condemning terrorism as criminal and unjustifiable, the United Nations has as a world body done essentially nothing and has been indifferent and ineffectual in stopping terrorism directed toward Israel, Israelis and their allies, including the United States. The unwillingness or inability of the Palestinians to stop terrorism, blamed by many on the failure to achieve the jointly pronounced goal of a two state solution to the Israeli-Palestinian conflict, has resulted in injury and death to thousands of innocent people while also causing an enormous disruption to people’s lives. This constant state of siege has drained Israel’s resources and also crippled Palestinian society as a whole.

The Quartet, consisting of the United Nations, the European Union, Russia and the United States (Quartet) has failed in its efforts to achieve a peaceful solution and to stop the constant terrorist attacks emanating from those who deny and refuse to acknowledge Israel’s right to exist as a sovereign nation-state. In reality, it is this failure to stop terrorism that truly continues to be the primary obstacle to peace between the Israeli and Palestinian peoples coupled with the failure and refusal of the Palestinian leadership to come together with the Israeli government to discuss and agree upon the final status issues contemplated in the Oslo Accords.

Peace, War and the Status of Diplomatic Relations

While the State of Israel has successfully entered into official peace agreements with two of its border states, Egypt and Jordan, to this day, a state of war continues to exist with Syria and Lebanon, Israel’s other border states.²¹ Other Arab and predominately Muslim led governments throughout the region have largely treated Israel as a pariah and some, like Iran as well as Iraq under Saddam Hussein and Libya under Moammar Gadhafi, have gone so far as to fund, sponsor and enable terrorism that targeted Israel and those who support a peaceful resolution of the Arab-Israeli conflict. Moreover, in terms of diplomatic relations throughout the international community, Israel has been unable to establish diplomatic relations with many countries; and others with whom diplomatic relations have been established have subsequently broken or suspended relations after the occurrence of various events. In addition, although Israel has been accepted into the Western European and Others Grouping at the United Nations (WEOG), she has been refused proper admission and participation in the United Nations’ regional grouping to which Israel geographically belongs, thereby depriving her of any right to sit on the United Nations Security Council. All in all, Arab governments, for the most part, refuse to have diplomatic relations with Israel altogether, although many have promised relations if Israel agrees to the Arab Peace Initiative proposed in 2002 by Saudi Arabia.

Past Attempts at Peace

Despite attempts at mediation by the United States, other countries and the United Nations itself no lasting peace in the form of a final agreement has been achieved between the State of Israel and the Palestine Liberation Organization or the Palestinian Authority. Attempts at peace, however, whether genuine or not, and partial progress have been made by both sides resulting in some agreements but no final understanding on important core issues. As the Covenant of the PLO called for the destruction of Israel, an essential negotiating term was required by Israel before it reached its first agreement with the PLO, that the PLO renounce its intention to seek the destruction of Israel and formally acknowledge Israel’s right to exist as a nation-state. On September 9, 1993, in a letter to Israeli Prime Minister Rabin, Yasser Arafat, who served as Chairman of the PLO, declared for the first time that the Palestine Liberation Organization recognized the right of the State of Israel to exist in peace and security. In exchange, Rabin declared that the State of Israel recognized the PLO as the representative of the Palestinian people (Exchange of Letters).²² Arafat, on behalf of the PLO had declared in 1988 the creation of the independent Palestinian state, recognized by many countries, but not by the United States, Israel nor most of their allies. The PLO was granted Observer status at the UN and on November 29, 2012 granted upgraded non-member state observer status at the UN similar to the status held by the Vatican.

In early 2013, by Executive Order, Mahmoud Abbas, President of the PA, changed the name of the PA to the State of Palestine. However, although various governments have recognized Palestine as a state, the United States, Canada, Israel and various other countries have not done so, nor has the UN Security Council.

With the Exchange of Letters, Israel and the Palestinians proceeded to enter into the Oslo Accords and various agreements designed to achieve peace and recognition of formal sovereign statehood for the Palestinians to be accomplished through a process leading to what is referred to as final status negotiations, where the end result is envisioned to include a resolution of the major open issues concerning security, borders, refugees, the status of Jerusalem and the formal creation of an internationally and UN recognized independent State of (Arab) Palestine. Following the Exchange of Letters, and pursuant to the Oslo process and agreements, the Palestinian Authority was created to assume responsibilities over certain areas of the Palestinian Territories, in accordance with the terms of the agreements. On April 26, 1996, the Palestinian National Authority formally approved and ratified Arafat’s Exchange of Letters commitment.23

The Oslo Accords, the Gaza Security Fence, the Wye River Accords and the Middle East Peace Summit at Camp David

In 1992-94, as a result of the Madrid peace process and in order to protect against further terrorist threats and to set the stage for the eventual creation of a recognized Palestinian state, the late Israeli Prime Minister Yitzhak Rabin and the late Palestinian leader Yasser Arafat signed the Oslo Accords. During the negotiations leading to the Oslo Accords, Israel negotiated with the PLO and addressed Israel’s administration of the areas that had been under Jordanian control.

Shortly after beginning the implementation of the Oslo Accords, Israel built a 60-kilometer security fence around the Gaza Strip.²⁴ This fence was of limited controversy, was seen for what it was: a security fence designed to keep people from Gaza out of Israel as a necessary protective measure against terrorist infiltrators and in the Agreement on The Gaza Strip and The Jericho Area, both Israel and the PLO agreed that, as long as this Agreement is in force, the security fence erected by Israel around the Gaza Strip shall remain in place…²⁵

In 1998, the Wye River Accords were signed by Prime Minister Netanyahu during his first term, in the presence of President Clinton and by Chairman Arafat, who simultaneous served as Chairman of the PLO and President of the Palestinian Authority. The parties also subsequently signed the Hebron Accords, both of which were the first Israeli-Palestinian agreements since the Oslo Accords, and are the last formal agreements to have been signed between Israel and the Palestinians. Although the Wye River Accords were intended to implement the unfinished business of the Interim Agreement of September 28, 1995, most of the agreement’s provisions remained in limbo due to the replacement of Prime Minister Netanyahu who was succeeded by the election of Prime Minister Ehud Barak, and the subsequent developments on the ground.

In 2000, Israeli Prime Minister Ehud Barak and Chairman Arafat, at the invitation of President Bill Clinton, convened at Camp David in an attempt to resolve most of the major open issues between the Israelis and the Palestinians. President Clinton expended significant efforts in an attempt to conclude his Presidency with achieving a full Middle East peace agreement between Israel and the Palestinians. Despite Barak’s reported offer of the creation of a Palestinian state in approximately 96 percent of the West Bank and the whole of the Gaza Strip, with its capital in East Jerusalem, Arafat remained quite recalcitrant and steadfastly opposed a final peace agreement on the terms offered and much to the disappointment and surprise of President Clinton and Prime Minister Barak, flatly rejected the Israeli proposal. Arafat’s insistence that millions of Palestinian refugees be given the right to return to lands within Israel proper effectively destroyed any possibility of achieving what many believe would have been an historic peace treaty between the Israelis and the Palestinians.

Failed Attempts at Peace

The disappointing outcome resulting from Arafat’s refusal to reach a final peace agreement at Camp David in 2000 begs the question as to what were Arafat’s real intentions for the Middle East Peace Summit in the first place. Why did he decline President Clinton’s suggestions and the Israeli offers for establishment of a Palestinian State? Arafat’s post-Camp David statements offer some telling clues.

On August 28, 2000, shortly after the failed summit, when Arafat essentially left President Clinton and Prime Minister Barak standing alone at Camp David, Arafat attended a meeting of the Al-Quds Committee in Agadir, Morocco.26 The Al-Quds Committee is committed to the liberation of East Jerusalem, if not all Jerusalem.27 At the event, Arafat described the return of Al-Quds (to be read here as Jerusalem) to its legitimate owner (to be read here as the Palestinians) as a red line in his negotiations at Camp David. Several leaders from moderate Arab states, including the Tunisian President, supported Arafat’s East Jerusalem claim, thereby endorsing Arafat’s refusal to achieve an agreement with the Government of Israel at Camp David.

During the period leading up to the Oslo Accords, control of certain lands, police responsibilities and governing and judicial functions were transferred from the Israelis to the Palestinians through direct negotiations. After the Oslo Accords, the PA’s security services were established for the dual purposes of providing routine police functions by Palestinians for the Palestinian people as well as to serve as Palestinian border guards in areas where both Israeli and Palestinian guards had responsibilities, even though official borders had not and have not yet been established. For the most part, the Palestinian Authority has failed to meet its important obligations: it has largely failed to establish democratic law abiding institutions, it has largely failed to construct much needed schools using textbooks free of hate for Israel, has failed to fully establish highest standards health care facilities and has failed to develop a robust and stable economy, notwithstanding enormous aid provided by various foreign governments. The PA blames almost all its failures on Israel, its policies and its security presence within the West Bank. Most importantly, for Israel, the PLO and the PA have failed to thwart or prevent terror attacks targeted against Israel emanating from the West Bank and from Gaza.

The Second Intifada’s Reign of Terror

Shortly after Arafat refused Israel’s offer at Camp David in July 2000, the Palestinians initiated a new campaign of terror against the State of Israel and all Israelis, thus commencing the Second Intifada or civil uprising, a period marked by intense violence and heinous murder targeting Israelis, Americans and others visiting Israel.28 The First Intifada occurred starting in 1987 and took countless lives as the PLO and its member organizations rained terror upon Israel as a means of accomplishing its political aims.

As a result of the Second Intifada, Israeli citizens endured a particularly lethal and steady barrage of heinous terrorist strikes and attacks. The form of attack varied in method, location and target. All throughout Israel, there were bombings and rocket and mortar attacks, as well as bombings of buses, restaurants, shopping centers, hotels, synagogues and other public and private places. The attackers, most often men and women wearing bombs strapped to their bodies, detonated their explosives with the goal of killing and injuring as many Israelis and Americans as possible, thereby achieving martyrdom in dying for the Palestinian cause of seeking independent statehood. These bombings have come to be known as suicide bombings or sometimes, and perhaps more aptly, as homicide bombings. The Israeli High Court described the difficult security situation:

Israel’s fight is complex. Together with other means, the Palestinians use guided human bombs. These suicide bombers reach every place that Israelis can be found (within the boundaries of the State of Israel and in the Jewish communities in Judea and Samaria and the Gaza Strip). They sow destruction and spill blood in the cities and towns. The forces fighting against Israel are terrorists: they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including inside holy sites; they are supported by part of the