Israel's security barrier and the International Court of Justice.

Author:Wertheim, Peter
Geographic Code:7ISRA
Date:May 1, 2004

The Israeli government has made a mistake in its decision to withdraw from further participation in the proceedings before the International Court of Justice (ICJ) concerning the security barrier currently being constructed in parts of the West Bank. Israel and numerous other States, including Australia, have made written submissions to the ICJ denying that the Court has jurisdiction to deal with what they say is essentially a political, not a legal issue. They have argued that the proceedings, initiated by way of a request from the UN General Assembly, are an abuse of process, because they constitute an attempt to use the Court as a political tool by one side in the ongoing Israeli-Palestinian conflict. Furthermore, no government of a sovereign and democratic State would accept being told what it can and cannot do to protect its own citizens by an outside body that is not accountable to those citizens in any way.

Even accepting that the objections of Israel and other States are well founded, and that the ICJ proceedings are a blatant political exercise, it is still a mistake for Israel to withdraw from the case. Unlike the General Assembly, the ICJ commands a high level of respect across the international community. It is a court of law with 15 sitting judges of outstanding reputation from countries representing all the major legal systems of the world. If it decides that it has jurisdiction in the matter, it must do so on cogent legal, not political, grounds.

Moreover, the ICJ has only been asked for an advisory opinion, which under the ICJ statute is not legally binding. These are not contentious proceedings like a normal court case. There are no "parties." Israel is not a "defendant." If the Israeli government believes that its non-participation will somehow undermine or reduce the legitimacy of the proceedings, it has made a grave miscalculation. By vacating the arena, it will merely be giving its enemies an undeserved "free kick."

The fact that an advisory opinion of the ICJ is not legally binding does not mean that it is without legal effect. Because of the ICJ's stature, its advisory opinions and other pronouncements are highly influential in shaping what is known as customary international law, the accumulated body of rules that are universally recognized as applying to all States independently of their obligations under treaties to which they are parties.

More significant in the present proceedings will be the political effects of the Court's conclusions. It is one thing for Israel to be vilified by ill-informed, shallow, and self-opinionated journalists. But attracting the odium of the ICJ is a much more serious matter. If it is the ICJ's opinion that parts of the security barrier in the West Bank violate international law and Israel disregards that opinion by continuing with the barrier's construction, Israel's opponents will have a field day in portraying it as a "rogue State" that operates outside the parameters of international law.

Ordinarily, it matters little what Israel's opponents think and say. But if their polemics are backed up by pronouncements of the ICJ, States that have traditionally been friendly, or at least not hostile, to Israel may begin to downgrade their trade, cultural, and scientific ties with it. One can also expect a further increase in antisemitism against Jewish communities in the Diaspora, which will not under any circumstances back down in their support for Israel's right to exist and defend itself.

So what would Israel stand to gain by participating in the ICJ proceedings if, as most legal experts predict, the Court's opinion is likely to be unfavorable to it? The short answer is that, unlike the General Assembly, the ICJ is a controlled and neutral forum from which Israel has a rare opportunity to publicly discredit and ridicule the arguments of its opponents, principally the Palestinian leadership and the General Assembly, and to attack their bona rides.

It is also by no means a foregone conclusion that the ICJ's opinion, or at least parts of it, will not favor Israel. A further possibility is that the Court will be divided. Even if the majority of judges formulate an opinion adverse to Israel, a minority could publish a dissenting opinion. A strong showing by Israel at any public hearings before the Court that was followed by a powerful dissenting opinion in support of its arguments would go a long way toward blunting the political effect of any majority opinion that did not favor Israel. But it will be far easier for the ICJ to produce an opinion that is wholly adverse to Israel, and far more likely, if Israel does not participate in the proceedings.

In other words, Israel should accept that the proceedings are a political exercise, and, instead of providing its opponents with a free political gift by vacating the field, it should exploit every opportunity to score some political points of its own. All of this presupposes that Israel has some strong arguments to make. Indeed it does. There are at least four categories of issues that the ICJ may need to consider. All four categories afford Israel with opportunities to make persuasive legal arguments with telling political effect.

The first category concerns the question of jurisdiction. Article 65(1) of the ICJ statute provides that the Court may give an advisory opinion "on any legal question" at the request of an authorized UN body. The text of the question referred to the ICJ by the General Assembly is as follows:
 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, as described in the report of the Secretary-General,
 considering the rules and principles of international law,
 including the Fourth Geneva Convention of 1949, and relevant
 Security Council and General Assembly resolutions?

In its written submissions, Israel argued that this is not a "legal question." It is so loaded with polemical language that it should be considered outside the scope of Article 65(1). Only small sections of the security barrier can accurately be described as a "wall." Is the General Assembly's question intended to be limited only to those sections? The General Assembly's question also characterizes Israel as "the occupying Power" and the West Bank and East Jerusalem as "Occupied Palestinian Territory." These characterizations constitute conclusions of law that relate to some of the very matters about which the ICJ is supposedly being asked for an opinion. No self-respecting court should tolerate any outside attempt to pre-judge the issues.

The question also focuses on "the legal consequences" of the construction of the barrier. It does not specifically ask the ICJ to opine on the "legality" of the barrier per se or on whether Israel may properly invoke any of the defenses that are recognized in international law as precluding its actions being considered wrongful. The General Assembly's formulation is a crude attempt to blinker the Court by excluding from its purview the horrific suicide-bombing campaign directed at Israeli civilians that gave rise to the construction of the barrier in the first place. These issues provide Israel with an unprecedented opportunity to put the General Assembly in the dock for its perennial anti-Israel bias and for attempting to manipulate the ICJ. They form a basis upon which Israel can argue that the General Assembly's question is not a "legal matter."

As valid as these considerations may be, they are unlikely to result in the Court's finding that it has no jurisdiction in the matter. In previous cases in which the ICJ has been requested to provide an advisory opinion, it has concluded that the political nature of any motives inspiring the request or the political implications of any opinion it may furnish do not mean that the question before it cannot be considered in its purely legal aspects. The Court may therefore conclude that it has jurisdiction. But vigorous submissions from Israel on the jurisdictional issues might lead the ICJ to rewrite the question or make other comments that explicitly or implicitly criticize the General Assembly for the bias inherent in the way its request has been formulated. It has criticized UN agencies before. This would go some way toward minimizing the political fallout from any parts of the ICJ's opinion that are critical of Israel.

The second category of issues to go before the Court, if it finds that it has jurisdiction, concerns the question of whether it should nevertheless, as a matter of discretion, refuse to give an opinion. In the past, the ICJ has said that only "compelling reasons" would lead to such a refusal. All of Israel's arguments on the jurisdictional issue could also be said to constitute "compelling reasons" relevant to this question. An additional "compelling reason" for the Court to decline to exercise its advisory jurisdiction in this case is the paucity of the evidence that has been placed before it. Article 65(2) of the ICJ statute requires any request for an advisory opinion to be "accompanied by all documents likely to throw light upon the question." That is because the ICJ is not an investigative body.

In the present case, the most significant factual material that has accompanied the General Assembly's request is a report, dated September 8, 2003, prepared by Special Rapporteur, Professor John Dugard, of the UN Commission on Human Rights. The report provides certain details about the size and cost of the barrier and the materials used in its construction. It focuses in particular on the various forms of hardship and inconvenience to the Palestinian civilian population that it attributes exclusively to the barrier. It also adopts the General Assembly's politically loaded terminology by describing the barrier as a "wall." It concludes that the barrier "has all the features of a permanent structure" and that" [s]ettlements in East Jerusalem and the West Bank are the principal beneficiaries of the Wall (sic)."

Israel's withdrawal from the proceedings may allow these highly contentious assertions to remain uncontradicted. In fact, parts of the barrier have already been moved by Israel to lessen the impact on the Palestinian population. Also, as a matter of simple logic, Israelis living within the pre-1967 borders will derive as much protection from the barrier as those who live on the Israeli side of the barrier in the West Bank. More seriously, however, the Dugard Report contains no comparable detail about the hundreds of Israeli civilians who have been deliberately targeted and killed or maimed over the last three years in bombing attacks organized by the Palestinians. The Israeli government could argue that one of the "legal consequences" of the construction of the barrier is that it fulfills the government's legal and moral obligations to protect the lives and safety of its citizens. If the ICJ has no material before it to enable it to assess that particular legal consequence, how can it possibly weigh it up against other legal consequences?

The ICJ is faced with other fundamental evidentiary difficulties. To the extent that the security barrier cuts into the West Bank, any attempt to assess the legal consequences arising from its construction begs the question of the legality of the settlements in the West Bank that will lie on the Israeli side of the barrier and the legality of Israel's military presence in the West Bank generally. These are huge legal questions that go well beyond the scope of the specific question formulated by the General Assembly.

To deal with these questions in anything like an intelligent way, and to meet the requirements of Article 65(2), the ICJ would need to have before it a vast quantity of documentary material including at the very least the official and other historical records of Turkey, the UK, Israel, Jordan, Egypt, Syria, the UN, the Arab League, and various Palestinian organizations, as well as the various agreements entered into between Israel and the Palestinian Authority. The General Assembly has not even attempted to provide the Court with this material. If the Court lacks the documentary material that it needs to provide an opinion about the specific question that has been put to it, and logically anterior questions, it has all the compelling reasons it needs to decline to deal with the matter.

Although Israel and other States may already have provided the ICJ with written submissions along these lines, they would have greater political resonance if they were made in open court at the public hearings phase of the proceedings. The essential point is so simple and obvious that it could not be lost even upon the international media. No court, and no lawyer, can sensibly express a legal opinion about any question without being apprised of the relevant facts.

A third category of issues can only arise if Israel changes its mind and decides to participate fully in the proceedings. It could then apply to nominate an eminent Israeli judge as an ad hoc judge to hear the case with the 15 regular judges of the Court. The application would be based on the fact that the regular judges include an Egyptian and a Jordanian. Egypt and Jordan may be perceived to have an interest in the proceedings adverse to that of Israel. Israel would argue that in such circumstances it may nominate an ad hoc judge as a matter of right under Article 31(2) of the ICJ statute.

Such an application would make things very awkward for the ICJ and greatly vex Israel's opponents. As a matter of law, there is some doubt as to whether Article 31(2) applies in advisory proceedings. In two previous advisory proceedings, the ICJ expressed contradictory views on this issue. In the Namibia case in 1971, the ICJ refused to permit the appointment of an ad hoc judge based on an apparent misconstruction of its rules. Four years later, in the Western Sahara case, the ICJ appeared to reverse its position and granted an application to appoint an ad hoc judge. If Israel were to make such an application in the present case and the application was rejected by the ICJ, the Court would expose itself to the criticism that it has violated its own statute and denied Israel natural justice.

If, on the other hand, Israel's application was successful, the ad hoc Israeli judge would be privy to the deliberations of the 15 regular judges of the Court and would have an opportunity to influence those deliberations. The presence of an Israeli judge on the court would further impel the ICJ to deal with all of Israel's arguments in detail without glossing over or ignoring them. Even if only a minority of judges was favorably disposed toward Israel's arguments, the judges would be helped immeasurably in formulating their dissenting opinion by being able to confer with their Israeli colleague. Of course, if Israel does not participate, none of this is possible.

The fourth category of issues concerns the substantive questions surrounding the legal consequences--and legality--of Israel's security barrier in international law. There are two main arguments that Israel's opponents have put forward in support of their contention that the barrier is illegal. First, they have asserted that the construction of the barrier constitutes "a land grab" by Israel for those parts of the West Bank that will lie on its side of the barrier. Second, they have argued that the barrier violates international humanitarian law and, in particular, the provisions of the Fourth Geneva Convention concerning the treatment of civilians during armed conflict, because of the hardships it creates for Palestinian civilians.

The first of these arguments is based on the proposition that since at least 1945, the acquisition by a State of permanent legal title to territory through the use of force, even in legitimate self-defense, is absolutely prohibited in international law. The preamble to UN Security Council resolution 242 (1967) emphasizes "the inadmissibility of the acquisition of territory by war." The UN General Assembly Declaration on Principles of International Law concerning Friendly Relations among States (1970) states bluntly: "No territorial acquisition resulting from the threat or use of force shall be recognized as legal." (Principle 1, para. 10) Although these resolutions are not of themselves legally binding, they demonstrate that customary international law independently prohibits a State from acquiring permanent ownership of territory by force.

The question then is whether the construction of the security barrier is an attempt by Israel to acquire permanent title to those parts of the West Bank that will lie on its side of the barrier. In 1969, the Israeli Knesset passed a law purporting to annex East Jerusalem. But different historical and legal considerations apply to the status of East Jerusalem compared to those that apply to the West Bank. For example, in its 1947 Partition Plan, the UN designated the whole of the Jerusalem area as a corpus separatum (separate body). Israel is on strong ground in arguing that it has not at any time attempted to annex any part of the West Bank outside East Jerusalem.

Despite the various polemical characterizations of the security barrier as a permanent wall, Israel's Prime Minister Ariel Sharon has gone on record as recently as December 18, 2003. to confirm that the security line to be formed by the barrier "will not constitute the permanent border of the State of Israel." He went on to emphasize that Israel's entire plan to disengage from the Palestinians is a security measure that is in no way intended to preempt the outcome of any political process.

The onus will be on those who assert that Israel has annexationist intentions to prove what they assert, and the evidence concerning the West Bank is simply deficient. The most effective way for Israel to drive this point home is for Prime Minister Sharon's public commitments to be repeated in open court during the public hearings phase of the proceedings. Again, however, that would require Israel's full participation in the case. Even if the ICJ were to conclude that Israel has annexationist intentions with regard to East Jerusalem but not the West Bank, this would severely embarrass the General Assembly and the Palestinian leadership, among others.

But it is the alleged violations of international humanitarian law that many legal commentators consider to be where Israel is at its most vulnerable legally. According to the Dugard Report, the completion of the security barrier will result in more than 200,000 Palestinian civilians being cut off from their farmlands and workplaces, schools, health clinics and other social services, and members of their families.

Israel has not sought to deny the thrust of these comments. On the face of it, the hardships imposed on the Palestinians will violate their human rights under the provisions of the Fourth Geneva Convention. In the past, Israel has argued that the Convention only applies as between States that are parties to it. "Palestine" is neither a State nor a party to the Convention and the West Bank is not, and has never legally been, part of the territory of any such State. Israel argues that the provisions of the Convention therefore do not apply in the West Bank. The opposing argument is that these provisions are now universally applicable as customary international law and that the Palestinians' human rights are not dependent on the applicability of the Convention.

In response, Israel would argue that even if the barrier violates certain human rights of the Palestinians, its construction is a necessary measure to protect the even more fundamental human rights of Israeli civilians, including the right to life. The International Covenant on Civil and Political Rights (1966), to which Israel is a party, confirms that there is a hierarchy of human rights and that some rights are to be regarded as so fundamental that no derogation from them may be made in any circumstances. (Article 4) Among these are the right to life. (Article 6) Israel would argue that if one must weigh up the hardship and inconvenience suffered by the Palestinians against the loss of life and catastrophic injuries suffered by Israelis in the ongoing suicide-bombing attacks against them, Israel is required under international law to give priority to the preservation of human life.

In this respect, Israel has an opportunity to put the Palestinian leadership on the defensive. A large volume of material could be placed before the Court to demonstrate that the bombing attacks Israel has faced have been widespread and systematic and have deliberately targeted its civilians, hundreds of whom have been killed or wounded. These attacks collectively meet all the criteria that define a crime against humanity under international law. In protecting its civilians against crimes that shock the conscience of humanity, a State must be allowed more leeway than might otherwise be the case in the kinds of security measures it may legitimately take.

The counter-argument is that to the extent that the barrier encroaches into the West Bank, it is neither a necessary nor proportionate response to Israel's security problems, as required by international law. Israel could protect its citizens just as well, without harming the Palestinians, by ensuring that the security barrier does not extend beyond the Green Line, its pre-1967 border.

But that would leave Israeli civilians in the major settlements on the West Bank exposed to further attacks, with consequential loss of life and injuries. The only possible basis for arguing that these civilians are not equally entitled to their government's protection is to demonstrate that their presence in the West Bank violates international law. As already noted, however, the ICJ has not been asked to express an opinion about the legality of the settlements or the legal status of the West Bank in general. Nor has it been provided with the documentary material that it would need as a foundation for any such opinion. It cannot therefore conclude that the settlements are illegal.

The Court may, of course, try to avoid altogether the difficult question of weighing up one set of human rights against another. Or it could gloss over the difficult questions concerning the legal status of the settlements and the West Bank. But that would only serve to undermine the moral force and credibility of its entire opinion.

To conclude, there are many things to be said in support of Israel and to expose the weaknesses of its opponents' arguments. The proceedings afford Israel with a rare opportunity, during the public hearings phase, to take the world stage in the relatively impartial context of a court of law and sweep away years of simplistic anti-Israel rhetoric in the General Assembly by dramatizing the truly agonizing choices that continually confront its government and people.

PETER WERTHEIM is a practicing lawyer with his own firm in Sydney, Australia. He holds a Master of Laws degree specializing in international law. Between 1996 and 2000, he was the elected leader of the Jewish community in New South Wales.
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