Crippled Justice: Limping Towards the Wall

Palestinian woman working on a field split into half by Israel’s Separation Barrier (StoptheWall.org)


With the construction of the ‘Separation Wall’ in the West Bank being brought before the International Court of Justice in The Hague, for the very first time an aspect of the longstanding Israeli-Palestinian conflict has been transferred from the usual forums of international debate (the UN Security Council, General Assembly, and subsidiary bodies) to an international judicial body. This novelty raised considerable optimism on some sides; these expectations, however, have to be closely examined in view of the legal and political limits of the ‘World Court.’

After three days of public hearings beginning on 23 February 2004 in the Peace Palace in The Hague, the official seat of the International Court of Justice (ICJ), everybody is waiting for its decision in what has become known as the ‘Wall Case.’ Nobody knows how much time the 15 members of the “principal judicial organ of the United Nations”(1) will take for their deliberations. As the UN General Assembly (GA) asked the Court to render its opinion “urgently”(2) and as the latter was already responsive to this request by fixing a tight time schedule for the proceedings,(3) it can be expected that the Court, known for its unpredictability in time issues, will not take too long for its decision. Some observers anticipate a ruling as soon as two or three months, and most probably it will be rendered within the second third of the year.

The events preceding this juridical intervention were part of a well-rehearsed procedure within the UN system. In the spirit of the famous 1950 “Uniting for Peace” resolution,(4) the GA sometimes acts to substitute itself for the Security Council (SC) in cases when the latter, due to lack of unanimity amongst its permanent members, fails to exercise its responsibilities. This is what occurred in the ‘Wall Case’. On 14 October 2003, a draft resolution condemning the Wall as illegal was discussed in the SC, but it was not adopted because of a US veto.(5) Only one week later, an almost identical text—introduced by Italy on behalf of the EU member states—found broad approval within the GA, by a vote of 144 in favor and four against (Israel, the US, Micronesia and the Marshall Islands) with 12 abstentions. The text called on Israel to “stop and reverse the construction of the wall in the Occupied Territories, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law.”(6)

According to the ‘usual’ procedures, this unambiguous condemnation would have wandered into the UN archives without any further consequences, as have countless preceding resolutions on the Israeli-Palestinian conflict. But this time things were different. The GA did not content itself with its first resolution on the matter, but made use of its power to request that the ICJ give a so-called “advisory opinion.”(7) On this basis the GA decided on 8 December 2003, still in the framework of its resumed Tenth Emergency Special Session, to request that the ICJ render an advisory opinion on the following question: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem […] considering the rules and principles of international law?”(8)

Great Expectations

As already indicated, this surprising development has raised great expectations. The fact that for the very first time in the history of the conflict, an international judicial body would articulate itself on the legality of a unilateral Israeli measure vis-à-vis the Palestinians promised, at least for some, a new stage in the international awareness of, and reaction to, the deadlocked situation in the Middle East. Many hoped that even though the ICJ has no power to enforce its decisions, an ICJ ruling would nevertheless set an important precedent and perhaps, sooner or later, lead to international sanctions against Israel, due to the high reputation of the Court and the independence of its members.

This kind of reasoning draws upon the ‘Namibia Case,’ where the ICJ rendered an advisory opinion at the SC’s request. In a 1971 decision,(9) the Court declared that the continued South African presence in Namibia was illegal. Furthermore, it not only ruled that South Africa had to end its occupation, but also that all UN member states were obliged to avoid recognizing or supporting the illegal behavior of the occupying force. This legal opinion was one of the major steps which paved the way for the arms embargo and other restrictions imposed on Pretoria.(10) The sanctions were only lifted in 1994,(11) following the end of the South African occupation in 1988, Namibia’s independence in 1990, multiracial elections in South Africa, and the end of the apartheid regime.

The Namibia affair became paradigmatic for the ‘Wall Case’ in several respects. In both cases the advisory opinion procedure seemed to offer a unique opportunity to bring the legal fate of an occupied territory before an international tribunal. It was not accidental that the wording of the GA’s request in the ‘Wall Case’ imitates the SC request regarding Namibia by not only asking for the Court’s verdict on the {{legality}} of the acts in question, but also for the legal consequences arising from them. Moreover, as these legal consequences are not only aimed at the presumed perpetrator but also potentially affect all UN member states, the advisory opinion procedure seemed, in both cases, an appropriate means to stimulate movement on the international level, i.e. to give the international community an incentive as well as an adequate legal basis to become active.

Such hope has, for example, been explicitly expressed by Nasser Al-Kidwa, the Permanent Observer of Palestine to the United Nations, in his presentation before the ICJ, when he pointed out that “an advisory opinion can lead to positive developments and perhaps even a chain of events similar to that resulting from the Court’s Advisory Opinion on Namibia.”(12) A similar view, but from the other side, was taken by Israeli Minister of Justice Yosef Lapid who articulated the concern, shared by many, that an ICJ ruling against Israel could be the first step towards Israel being treated as a pariah state like apartheid South Africa.(13) However, Lapid did not manage to convince his colleagues in the Israeli cabinet that Israel should play an active role in the case at The Hague in order to prevent a negative ICJ decision and the international isolation and sanctions that could result.

Israel’s refusal to take part in the hearings in The Hague—the Israeli cabinet decided only to send a statement setting out Israel’s objections to the Court’s jurisdiction over the case—dampened Arab and Palestinian expectations that the illegality of the Wall could be demonstrated in a quasi-litigious procedure before the world public. An even more important though foreseeable setback towards this goal was the decision of a considerable number of states (including the US, Russia, China, Canada and the 15 EU member states) to not appear before the Court. This was not surprising because these states had taken a reserved attitude towards the intervention of a juridical forum into the issue of the Wall. The GA resolution of 8 December 2003, which requested that the ICJ give an advisory ruling regarding the Wall, was adopted by 90 votes in favor and eight against but with 74 abstentions, while the resolution of 21 October 2003, which had merely condemned Israeli construction of the Wall in the OPT, was almost unanimously accepted. The many states which had abstained from voting on the second resolution also decided not to appear before the Court. These states justify their position by claiming that the ‘Wall Case’ is only one part of complex political negotiations which cannot be considered in isolation, and that the intervention of a judicial body will harm the ongoing efforts towards a political solution to the conflict. Others, underlining the undisputed legal character of the question posed by the GA, take the opposite view and argue that the Wall’s construction “violates international law and is contributing to grave human rights violations. Therefore, it is appropriate that a court of law examines this matter.”(14)

The Limits of International Justice

This debate throws light on the very nature of the ICJ. Compared to a domestic judicial body, the ICJ has to deal with significant internal and external limits. A clearer picture of these limitations may dispel some of the illusions about what can realistically be expected from an international tribunal. Metaphorically speaking, on the international level Justice is not only blind—as she is often depicted to symbolize the ideal of impartiality—but also crippled.

The first limitation in the ‘Wall Case’ is inherent in the procedure of an advisory opinion itself. Contrary to a judgment resolving a dispute between states, which is legally binding upon them, the ICJ verdict in this case will merely constitute a special form of legal advice, a legal expert opinion for UN organs and agencies. It will not have binding force—neither for the states involved nor for the GA; for this reason, an advisory opinion merely fills a ‘subsidiary’ function when there is no possibility or will to submit a case to binding litigation. It is common to attribute a comprehensive power of judgment and enforcement to the concept of a ‘court of law.’ However, existing international law frustrates this attitude, which is largely inspired by the domestic sphere. In the case of HaMoked’s Wall petition,(15) the Israeli Supreme Court (sitting as a High Court of Justice) has the power, at least theoretically, to order the government to stop constructing the Wall, change its route, or remove it partially or totally; even if it were hearing a similar case referring to specific sections of the barrier, the ICJ could not act like this.

But even in its toothless capacity to render an advisory opinion, the ICJ is subjected—or rather subjects itself—to further restrictions. Before starting to think about the legality of the Wall in view of international law, the ICJ will address the so-called question of “propriety.” According to the pertinent passage of the Court’s statute,(16) the ICJ is endowed with a discretionary power to decide whether it is ‘appropriate’ to answer question submitted. Although the GA’s request contains an undisputably “legal question,”(17) the ICJ could nevertheless decline to render an opinion because of so-called ‘compelling reasons’ against it, and many states—the ‘abstainers’—have explicitly invited it to do so. The ICJ’s hesitant attitude manifests itself in the argument (found everywhere in the written statements, albeit in different versions) that the question of the Wall’s construction cannot be treated detached from the larger context of the conflict, that the problem essentially remains political, and that a court decision would only hamper and undermine the complex political process, particularly implementation of the road map.

The traditional structure of international justice stands at the foundation of this reasoning. Ultimately, the international system is based on the paradigm of sovereign and independent states, and in practice, political considerations and power dynamics often take precedence over the standards of international law. The famous Article 36 of the ICJ statute makes any judgment of the Court inescapably contingent upon the general or specific consent of all the states involved; it is by virtue of this voluntary participation that the decision has binding force on the parties, and only on them. In the ‘Wall Case’, Israel has explicitly not agreed that the ICJ may rule, which is why the ‘subsidiary’ option of requesting an advisory opinion was the only way to bring the matter before the ICJ at all. The written statements submitted by various states warning against the ‘politicization’ of the Court and the ‘circumvention’ of the requirement of state consent for a case to be brought before the ICJ are expressions of this traditional view of international justice. These states are aware, however, that their position conflicts with powerful developments sometimes characterized as a ‘paradigm shift’ within the international legal order during the last decades; developments that many of these states have welcomed, supported or even initiated in other contexts. And it should not be forgotten that in the ‘Namibia Case’, South Africa took a similar attitude to that of Israel today and never let anyone doubt its unwillingness to appear before the Court.

One of the core reasons for the weakness of international justice is the lack of “obligatory jurisdiction.” It is up to the parties of a conflict, even a presumed perpetrator, to decide whether to submit themselves to the Court. The community of states jealously scrutinizes every modification to this principle that favors non-state actors, especially when the power of initiative rests in the General Assembly, known as an unpredictable, or rather, uncontrollable body. From this perspective, the coincidence of an ‘inquisitive’ GA and an ICJ receptive to it could have most annoying consequences. Thus, the dismissive behavior of many states towards the intervention of the ‘World Court’ is not only due to the special role of the Israeli-Palestinian conflict in global geopolitics, but also to the fear of creating an unwanted precedent. One can imagine that the positions of the US, Russia and China were inspired as much by Iraq, Chechnya and Tibet as by Israel.

And Afterwards …

It is hard to evaluate how the ICJ will react to the quite peculiar coalition that has arisen before its bench. Although the abstainers firmly condemn the Wall’s construction as illegal, they join Israel in its refusal to recognize the forum of The Hague. It is not an unrealistic scenario that the 15 Court members, now deliberating behind closed doors, will eventually be convinced by this line of reasoning and hold that there are indeed “compelling reasons” to decline the GA’s request. If this occurs, the case would end without any examination of its merits.

International law, to a greater extent than any other branch of law, is intimately connected to politics. The emergence of a compromise—for example, Israel’s abandonment of plans for an eastern Wall along the Jordan Valley,(18) and some shortening or attenuating of the barrier presently being built, which could enjoy the political support of some prominent global and regional players, such as the US and Egypt—could have significant effects on the ICJ case. Notwithstanding the Court’s independence, the legal criterion of “propriety” is intrinsically political; and any political deal would affect the Court’s examination of the ‘judiciousness’ of taking up the case, increasing the chance that the ICJ might dispose of the complex affair and refuse to deal with the substance of the case by finding that it would be ‘improper’ for it to do so.

If the ICJ, however, accepts the GA’s request, there is almost no doubt that despite the Israeli security argument, the Wall project—as it is being implemented and planned—will be declared to be in contradiction to international law. In any verdict on the legal consequences arising from this illegality, however, the Court will be handicapped once more, for it has no means to get enforce its decision. This second core limitation of the international tribunal will also affect the ruling’s primary addressee, i.e. the GA. The SC is the only organ within the UN system having the power to decide on sanctions that are binding upon member states and, therefore, the only body that could effectively implement the verdict. In contrast to the ‘Namibia Case,’ such an action by the SC is highly unlikely.

All of this does not necessarily mean that a decision of the Court will not have any tangible consequences. For example, a decision against Israel could be used by one or more states to justify imposing unilateral sanctions on Israel. What is more, a formal declaration of the Wall’s illegality according to international law, particularly international humanitarian law as laid down in the Fourth Geneva Convention, would open the door to charging the individuals responsible for its planning and implementation as perpetrators of war crimes, using the so-called “grave breaches” statute of the Geneva Conventions.(19) In addition, apart from the legal realm, such a decision would be a ‘moral victory’ and could have long-term political consequences. It would be the first time for an international tribunal to pronounce a sentence on the Israeli-Palestinian conflict. Further, even if such a decision were criticized as politically biased,(20) a legal condemnation of the Wall would have a value going beyond the criticism articulated by any specific political body.

These effects, however, arising only in an indirect and impeded way, are far removed from the finality usually associated with a court decision. Few would expect the ruling of a judicial body to bring about justice in a broader sense, even in the case of a domestic tribunal, and certainly not an international one. But the ICJ is not even able to offer the core aspects of legality a domestic court provides. In other words, an international tribunal must often come to the conclusion that, its scope of evaluation being subjected to narrow limits, the question it has to deal with is not in conformity with or in contradiction to but actually beyond the concept of legality underlying its very structure and mandate. It is a common experience in international law that there are innumerable unlawful acts seeking their judge in vain. Whether the ICJ’s intervention in the ‘Wall Case’ can be evaluated positively or not largely depends on one’s expectations of the potential power of international justice. In the well-known story of “The Lame Man and the Blind Man,” the latter carries the former who on his part provides directions to so that they keep to the path; thus they compensate for their deficiencies through mutual assistance. It is not easy to imagine what one may realistically expect from a court that is both blind and crippled at the same time.

Andreas Mueller holds Master’s degrees in law and philosophy from the University of Innsbruck (Austria). He is currently doing research for his PhD thesis and is supporting a settlement project of the Alternative Information Center. This article was first published in News from Within, Vol. XX, No. 2, March-April 2004, and reprinted in The Electronic Intifada with permission.

Notes

  1. Art. 92, Charter of the United Nations.

  • General Assembly Resolution A/Res/ES-10/14 of 8 December 2003, last paragraph.
  • After having received the GA’s request on 10 December 2003, the Court fixed 30 January 2004 as the time within which the UN member states (as well as Palestine) could submit written statements, and 23 February 2004 as the date for the opening of the hearings (see Order of 19 December 2003, 1/3).
  • General Assembly Resolution 377(V) of 3 November 1950.
  • See 4841st and 4842nd meetings of the Security Council of 14 October 2003.
  • General Assembly Resolution A/Res/ES-10/13 of 21 October 2003, no. 1, adopted at the GA’s resumed Tenth Emergency Special Session.
  • See Art. 96, paragraph 1, Charter of the United Nations: “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”
  • Op. cit. 2.
  • “Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970)”, Advisory Opinion of 21 June 1971, available in {{ICJ Reports 1971}}, p. 16.
  • Security Council Resolution 418 (1977) of 4 November 1977.
  • Security Council Resolution 919 (1994) of 25 May 1994.
  • “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for Advisory Opinion, Public Sitting of 23 February 2004”, p. 25, no. 25.
  • “Cry, Our Beloved Country”, Gideon Levy, Ha’aretz , 11 January 2004.
  • Amnesty International, “The place of the fence/wall in international law”, MDE 15/016/2004, 19 February 2004.
  • HaMoked: Center for the Defence of the Individual vs. The Government of Israel et al., HCJ 9961/03.
  • Art. 65, paragraph 1 of the Statute of the International Court of Justice reads: “The Court may give an advisory opinion on any legal question at the request of whatever body.” [italics added]
  • See Art. 96 paragraph 1, Charter of the United Nations, footnote 7.
  • See, for example, “PM adviser: no plans for “eastern fence” in West Bank”, Amnon Barzilai, Ha’aretz , 10 March 2004.
  • Art. 146, Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949.
  • Despite the attempt of the Israeli government to establish the bias of the Egyptian Judge Nabil Elaraby, the ICJ refused the request to excuse him from the case; see the Order of 30 January 2004.

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