13 July 2004
Israel up against the wall
By Ian Williams
People who attack the World Court for its July 9 opinion on the Israeli wall in the Occupied Territories should beware.
In doing so, they are calling into question the United Nations Charter, and the whole foundation of international law and humanitarian conventions and treaties: which in the end are the legal basis of the state of Israel’s international recognition, and, in a broader sense, everyone else’s best hope for a global order that does not rely on anarchistic violence and force majeure.
The court in The Hague said in its ruling that the 600-kilometer wall, about a third built, “severely impeded” Palestinian rights to self-rule. It curves at points deep into the West Bank around Jewish settlements built on land occupied in the 1967 Middle East war. The court said the wall violated international humanitarian law and called on the UN Security Council and General Assembly to stop the barrier’s construction.
It is not often that the court comes out with such an unequivocal opinion. Just because it ruled against Israel and, by extension, its US protector, on every point, does not invalidate the reasoning for the rest of the world.
Rather it is a wake-up call to Israeli Prime Minister Ariel Sharon and his supporters in the United States to reconsider their stands and return from orbit. You cannot cherry-pick international law, enforcing the parts you like on others and denying those that impinge on your interests.
The one dissenting vote was American judge Thomas Buergenthal, who said the opinion did not take into account Israel’s need to protect itself against terrorism. His opinion was seconded by many American politicians seemingly more mindful of the coming presidential election in November than of ensuring a sound and peaceful world order.
In any case, Buergenthal’s statement was economical with the truth. The court considered the issue of Israel’s security needs and the threat of terrorism in some depth and length in its 56-page opinion - and it concluded that if Israel wanted to build the wall, it could do so entirely legally, on its own side of the “Green Line”. However, it could not do so on illegally occupied territory. Indeed, the court specifically excluded the small section of the wall built in Israel from its judgment.
Presumably well-lobbied beforehand, most of the US media reports about the case have sought to qualify the court’s opinion as “non-binding”. Of course, an authoritative statement of international law, issued by a 14-1 majority, is non-binding only if you do not accept the applicability of international law.
In reality, it would be difficult to get a more authoritative decision, not least since this opinion is being delivered to the General Assembly of the UN - with part of the opinion being that states party to the various conventions have a duty to enforce them on Israel.
The combination of the court and the General Assembly is the route that led to the independence of Namibia and sanctions against South Africa. It is the route that led to the eventual independence of East Timor - and a route that has kept Morocco’s annexation of Western Sahara unrecognized by any other country in the world.
It may be slow - but such opinions are binding on all law-abiding countries. Indeed, it was the General Assembly that voted for the partition of mandatory Palestine into Jewish and Arab states.
The other defense is to attack the decision as one of a kangaroo court. Just before the hearings, Howard Meyer, an authoritative historian of the World Court, pointed out that the lead counsel for Israel would “be Dr Shabtai Rosenne, an Israeli diplomat and longtime observer of the ICJ [International Court of Justice]”. As a student of the court, he has written more books about its procedures and its rulings than anyone.
In 1989, four years after the US walked out of the courthouse in Nicaragua’s case, Rosenne wrote in an introduction to a new edition of one of his works on the court that it had “rendered important services in the evolution of international law through the United Nations and in the peaceful settlement of disputes, more in the last decade than in the first 30 years of its existence … it has performed a major service to the international community as a whole because the need to bring international law into line with present-day requirements is real and urgent”.
As Meyer points out, “Some kangaroo!” It does not help the detractors’ case that the Israeli Supreme Court itself ruled last month that the route of the wall violated international humanitarian law, even it did not go so far as to rule occupation and settlements illegal.
It is hardly biased of the court to find that the Occupied Territories are indeed occupied and that the settlements are illegal. That is the position that the UN has always taken, and even the US had supported explicitly until very recently. The Israelis beg to differ, but then Saddam Hussein decided unilaterally that Kuwait was his 19th province and the world disagreed with him. In the end, the world tends to win.
The Palestinians by now may be a little bewildered. If they had sent people to place bombs next to the wall, or launched armored bulldozers against it, they would have been roundly condemned for terrorism. So they go to court and find both themselves and the judges condemned for bias and worse.
In fact, there is a lot of material in the opinion that may well provide sound precedents for future disputes.
First of all, the court decided that it did, indeed, despite the US and the Israeli opposition, have the right to consider the question, and that the UN General Assembly indeed had the right to ask it to do so. In this, as in all its other issues, it cited numerous precedents for its reasoning.
Then the judges voted by 14-1, with Buergenthal dissenting in each case, that:
a.. The construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem, and its associated regime, are contrary to international law.
a.. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the occupied Palestinian territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with Paragraph 151 of this opinion.
a.. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the occupied Palestinian territory, including in and around East Jerusalem.
a.. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present advisory opinion.
In a very important clause, Buergenthal was joined by the Dutch judge in his dissent, but it was nevertheless passed 13-2.
a.. All states are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all states party to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that convention.
However, the decision has many other implications that should concern all who want law-based solutions to the world’s problems.
The court had already allowed Palestine as an entity all the privileges of a state in representation to the court and it refers to Palestine throughout on a par with Israel as a party to the proceedings.
It had then further gladdened Palestinian hearts by vindicating their whole position of reasserting international law and UN decisions on the issue, as opposed to US and Israeli attempts since Oslo to relegate the conflict to a bilateral issue, excluding the UN.
“Given the powers and responsibilities of the United Nations in questions relating to international peace and security,” says the opinion, the wall was of direct concern to the organization and while it welcomed the “roadmap” and negotiations for a settlement, it qualified such negotiations as being “on the basis of international law”.
Interestingly, it also finds that the International Covenant on Civil and Political Rights applies to all people over which a state has jurisdiction, which means that they apply to the Occupied Territories - and so one must conclude would also apply to the US in such places as its detention center in Guantanamo Bay, Cuba, although the court does not wander that far that explicitly.
It also affirmed the applicability of other conventions that the Israelis have signed to people in the territories.
As a coup de grace, the court notes that the wall’s route has been drawn to include over 80% of the settlements - and it rules that the settlements are illegal, a violation of the Fourth Geneva Convention, as repeated Security Council resolutions have also termed them, not merely “unhelpful” as the Bill Clinton reformulation of the US position has it.
In a further blow to the expedient US position that decries the “Uniting For Peace Resolution”, which allows issues stalled by vetoes in the Security Council to be dealt with by the General Assembly, the court ruled that the procedure was indeed valid - and obligingly cited precedents from the time that the US and others had pioneered the procedure.
The Palestinians had of course used just this procedure in the face of yet another US veto in the Security Council to ask for the opinion from the court. An expedient Clinton administration declared the procedure as “no longer applicable”.
The next step is for the reconvening of the Special General Assembly, probably on July 15-16 to receive the report. As the draft resolution for that session has it, “Considering that acceptance of advisory opinions issued by the International Court of Justice is essential to the rule of law and reason in international affairs”, so most states will vote to accept the resolution, since to vote otherwise would indeed be tantamount to a vote to dismantle the UN charter.
The resolution asks the UN Secretary General to compile a register of property damage caused by the construction - which is innocent sounding but allows a suit for damages.
However while restating the opinion, the draft mostly leaves the issue hanging like a sword of Damocles - until after the American election, when the diplomatic mills will begin to grind.
However, it does reiterate focus on the court’s finding that states have a duty to apply international law when it is flouted.
After all, how can democratic governments outside the US, and particularly in the European Union, explain to their people their failure to “ensure compliance by Israel with international humanitarian law”, when told by the world’s highest court that they have an obligation to do so?
The resolution will certainly strengthen pressure inside the EU to take a stronger line against Israel’s behavior, and the EU is a far bigger trading and commercial partner for Israel than the US.
The nightmare for Israel is of course South African-style sanctions, both state imposed and consumer boycotts.
But the way to avert that is simple, and mandated by the court. “Mr Sharon, tear down this wall.”