COMMENTARY 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:
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.
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.
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.
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.
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."
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