On 23 February, the fifteen judges of the International Court of Justice will consider the legality of the route of the Separation Wall being built by Israel in the Occupied Palestinian Territories. At the prompting of the Palestinians, the UN General Assembly requested on 8 December 2003 that the ICJ offer an advisory opinion on the legal consequences arising from the construction of the wall in the occupied Palestinian territory. Note that neither the Palestinians nor those who supported the resolution are challenging Israel’s right to build a wall on the Green Line, or on Israeli territory, to separate Israelis and Palestinians. No-one is questioning Israel’s right to try to keep out suicide bombers by building a wall: the only issue being challenged is the route that the Separation Wall is taking, deep inside territories that do not belong to Israel.
This is surely an encouraging sign for those nations – like our own – that have urged the Palestinians to pursue their rights through nonviolent, legal means. Instead of sending suicide bombers, or at least failing to prevent others from sending suicide bombers into Israel, the PLO is instead sending representatives of its Negotiations Affairs Department to advance the Palestinian cause in a court of law. This is unquestionably a good thing, right?
Wrong. In fact, the United States, along with the United Kingdom and Australia have followed Israel’s example, and filed affidavits challenging the ICJ’s right to rule at all on the legality of the Wall's route. They are also bringing diplomatic pressure to bear on other UN member nations, urging them to do the same.
Israel's initial reason for challenging the jurisdiction of the court was alleged bias on the part of the ICJ (which contains an Egyptian judge). This is hardly an argument that the US can employ, however: the impartiality of the ICJ is widely recognized in American legal circles, and the US itself has referred cases there for adjudication. (Most recently in the case of United State v. The Islamic Republic of Iran, which considered whether the US bombing of Iranian oil platforms during the Iran-Iraq War contravened the 1955 Treaty of Amity, Economic Relations and Consular Rights. As the Court ruled in favor of the US in that case, it is difficult for the American administration to argue now – just three months after the Iran ruling - that the Court is biased against Western interests).
So the US, the UK, Israel, Australia (and whoever else they can get on board) are now focusing their challenge in a different area. In the words of a British Foreign Office spokesman, they are objecting on the grounds that it [is] the normal policy of the ICJ to gain the consent of both parties before proceeding with cases. Now, it happens to be true that most cases before the Court are referred to it by both interested parties, but in this case mutual consent is neither required nor relevant: a fact that is immediately apparent to anyone with internet access and a few minutes to spare perusing the ICJ’s Web site.
The Court actually has jurisdiction in two areas:
1. To adjudicate on Contentious cases between States, provided that both states consent.
2. To issue Advisory Opinions, if requested to do so by authorized organs of the UN (including the General Assembly).
As most cases before the ICJ fall under the first category, Contentious cases between States, it is technically true that in most cases it hears the Court seeks the consent of both parties. But the UNGA resolution of 8 December is not a “contentious case”; it falls under the second category, a request for an Advisory Opinion, which has been correctly submitted by an authorized party and needs no prior approval from any of the states involved. Challenging the ICJ's right to issue an advisory opinion on the grounds that the case does not meet the requirements of an entirely different class of legal hearing is at best curious, and frankly, utterly specious.
So why are Israel, the US, the UK and Australia scraping the bottom of the barrel to find grounds to prevent international law being brought to bear on the route of the Wall? Why is it so important for these nations to keep this case away from international scrutiny?
Well, Israel’s reason is obvious: it knows there is no legal basis for its claim that the route of the Wall is dictated by security needs, and it expects to lose – and lose badly – if the ICJ pronounces judgement. As Aluf Benn puts it: Israel will be present at the discussion about the separation fence in the International Court of Justice in The Hague mainly in order to lose honorably. Nobody in Jerusalem has any illusions that Israel can come out ahead in the decision by the 15 learned judges who were asked to express their opinion.
According to the Fourth Geneva Convention, the only possible defense that Israel has for building this Wall so deep in occupied Palestinian territory would be that this route is absolutely necessary for security. If it cannot prove that, then the route is indefensible as it illegally annexes land, expropriates private property, places permanent structures on occupied land, threatens the welfare of protected persons under military occupation, and effectively imprisons protected civilians – all violations of the Geneva Convention. Unfortunately for Israel, the very route of the Wall undermines the claim that it is primarily a security measure. Common sense would dictate that the best defense against Palestinian suicide bombers crossing into Israel would be a wall on the Green Line between Israelis and Palestinians, not one that will ultimately trap as many as 380,000 Palestinians (380,000 potential suicide bombers!) among the Israeli population on the “wrong” side of the Wall.
The claim that the route of the Wall is necessary for security reasons is also undermined by the fact that senior members of the IDF advised against choosing the current route, which maximizes the annexation of Palestinian land and water resources. The IDF warned that this deliberately in-your-face route risked provoking an angry backlash from dispossessed Palestinians, and that its meandering course would double the length of Wall that the IDF had to police, making it correspondingly less secure. When Israel's own Chief of Staff says that the extended route is too long to be securely policed, but he is overruled by politicians, it is hard to seriously claim that the route of the Wall is anything but political. And many Israelis themselves recognise that it is preposterous to claim a security imperative for the Wall's current route:
...the attempt to apply the principle of self-defense to the fence as it is currently being built, with all its deviations, its twisting route and its many de facto annexations, cannot but weaken Israel as it stands before the international court in The Hague and also before world public opinion. Defending the fence now being built could also fatally compromise the entire idea of a fence designed to defend Israel from terror attacks. (The Indefensible Fence, Ha'aretz, 7 Jan 2004).
Why is Israel, which ignores with impunity international law in the form of UNSC resolutions, particularly concerned by the prospect of an adverse judgement from the International Court? Israel’s unease arises from the fact that the ICJ has already set a precedent in condemning illegal occupation regimes, and it is a precedent that the current Israeli government finds very uncomfortable. In 1971, the Court issued an advisory opinion against apartheid South Africa and its illegal occupation of Southwest Africa (now Namibia). That ruling, which denounced the occupation of Namibia, was the origin of the international sanctions that led ultimately to the toppling of the apartheid regime. There is no doubt that the Palestinians were aware of, and were consciously emulating that precedent, when they initiated the request for an advisory opinion on the Wall and won the backing of the UN General Assembly.
For all that the Israeli government denies any parallel between apartheid South Africa and the situation developing between Israel and its soon-to-be-a-majority Palestinian subjects, the South African parallel is clearly fuelling the Sharon government’s concern over where the Separation Wall and the legal challenge to it is leading. In a leaked speech to the Israeli cabinet, Justice Minister Yosef Lapid warned last month that unless the route of the Wall is changed to follow the pre-1967 border, the ICJ court hearing will be the beginning of a process that will turn Israel into an apartheid-era South Africa [which] will be boycotted in every international forum.
Ha'aretz pointed out that Lapid apparently feels particularly uncomfortable because his own ministry officials are among those preparing the hollow Israeli defense that will be heard at The Hague. But his call to the government to divert the path of the fence and his warning about Israel ending up like white South Africa, have more than a measure of naivete if not cynicism. After all, the route decided on by the government, in which he is a senior minister, is indeed meant to impose a South African-type reality on the Palestinian territories. There is indeed a certain irony that, having deliberately adopted South Africa's bantustans as a model for dealing with the Palestinians, the Sharon government is now fearing South African-style repercussions. This is why it is so important for Israel that the case of Palestine v. the Wall should not be heard at the ICJ.
Israel's motivation in trying to halt the hearing may be easy to ascertain, but why are the US, the UK and Australia so determined to rally support for Israel's position - especially as all three nations have condemned the route that the Wall follows, which is the specific issue facing the Court?
In an interview with the Jewish Chronicle weekly, Foreign Office Minister for the Middle East, Baroness Symons, emphasised that it is still the UK's view that the building of the fence on Palestinian land is unlawful...The 1967 line is where it should be, or indeed on the Israeli side of that line. She explained that the UK was nonetheless opposed to the hearing, on the grounds that the involvement of the ICJ could serve to politicise the court in a way for which it was not designed - a rather odd position in view of the fact that, as Chris Doyle of the Council for Arab-British understanding pointed out, the essential raison d'etre of the ICJ is to mediate and resolve international political disputes.
The BBC was more forthcoming than Baroness Symons about the real motivation for British, American and Australian opposition to the ICJ hearing: What they are concerned about is that the case could set a precedent for the United Nations General Assembly to refer other controversial questions to the court. And what "controversial question" in particular have the US, UK and Australia been engaged in over the last twelve months, which they really do not want to come under international scrutiny? Hint: it involves the invasion of a country that begins in "I", ends in "Q", and doesn't have the letters W, M, or D anywhere in it.
This is what the Western opposition to the ICJ hearing on the route of the Wall comes down to: American, British and Australian fears of being held answerable for an illegal, preventative war on Iraq. White, first world, and European countries do not generally have to worry about the consequences of violating international law, while they hold three of the five powers of veto in the UN Security Council. As long as "controversial questions" are handled only through the UNSC, the world's most powerful nations can be sure that they will rarely be called to account.
The referral of the Wall issue to the ICJ is a threat to this cosy arrangement: it was a Palestinian initiative, which gained enough support from Third World countries in the General Assembly (where the major powers have no right of veto) to send it to the International Court (where there is also no right of veto). Without the support or approval of the world's most powerful nations, the Palestinians are charting a course for Third World nations to seek international justice, that cannot be frustrated by the self-serving use of the UNSC veto. This is an uncomfortable situation for those nations which ignored the wishes of the vast majority of UN member states and embarked upon the illegal invasion and occupation of a Third World country; which explains why the US, UK and Australia are now leading the charge in challenging the ICJ's jurisdiction to hear cases referred to it by the UNGA.
So, to ensure that those nations who went to war in Iraq will never face legal sanction for it, the Palestinians must be denied their day in court. The next time President Bush condemns the Palestinians for using violent, non-legal means, perhaps someone could remind him of where the US stood when the PLO sought legal redress at the ICJ, and quote for him the words of his more illustrious predecessor, John F. Kennedy, who noted that [t]hose who make peaceful revolution impossible will make violent revolution inevitable.