The International Court of Justice (ICJ) hearings on the West Bank separation barrier, which took place at The Hague last week, have attracted widespread attention and zealous passion. Palestinians and their partisans set up a mock fence outside the courthouse, and anti-Zionist chants filled the air. Not to be outdone, a pro-Israel organization shipped the skeletal remains of a blown-up bus into the city, and the parents of terrorism victims voiced their opposition to the hearings. But there is more than rhetoric to this case.
The hearings raise difficult questions about the legitimacy and utility of international law: How can international tribunals resolve conflicts when legal arguments are inseparable from political ones? The hearings highlight various powerful nations' challenging desires to exert influence through international bodies without strengthening those bodies to the point that their own sovereignty is threatened. And, unfortunately, they remind us -- nearly one year after we began a war in Iraq -- just how discombobulated and inconsequential the United Nations has become.
Last December 8, for the dozenth time since 1997, the UN General Assembly (GA) convened for the Resumed Tenth Emergency Special Session to address “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.” The GA passed a resolution asking its judicial organ, the ICJ, for an advisory opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory.”
Although the roll-call tab of 90 “yeas” and 8 “nays” seems adequately convincing, 74 nations -- including Russia, Canada, and the entire European Union -- abstained, and another 18 didn't vote. The resolution failed to gain the widespread support that condemnations of Israeli actions on the West Bank and Gaza Strip usually enjoy. The next day, 150 nations joined in a harsh critique of exactly the same separation barrier.
Why was the request for an ICJ advisory opinion so controversial? Nations like France and Russia, while perhaps for selfish reasons, are usually strong advocates of international bodies, and they are almost always comfortable scolding Israel. Part of these nations' resistance was due precisely to the inherent difficulty of adjudicating a political question through legal channels. As British Foreign Secretary Jack Straw wrote on February 3, “We believe that it is inappropriate to embroil the court in a heavily political bilateral dispute. We also believe the court should not be engaged where the consent of both parties has not been given. An opinion is not necessary to assist the General Assembly in reaching a view on the fence.”
But there was more to these countries' opposition than hesitancy over international jurisprudence; power politics were at work. In their written arguments, which were made public as the hearings began this week, Britain, France, and Russia contended that the UN Security Council, of which they are all a part, had already voted on resolutions regarding Israel's separation barrier. The council, led primarily by vigorous U.S. defense of Israeli policy, had rejected a piecemeal approach to the Israeli-Palestinian conflict (such as condemnation of the barrier without serious discussion of terrorist activities), and had reaffirmed its support for the floundering road map. The GA's request for an advisory opinion was, they argue, a circumvention of previous Security Council decisions. Finally, the Russians and British no doubt feared similar future resolutions: Would the GA soon start taking Russia to task for its aggressions in Chechnya or Britain for what it has done in Iraq?
The ICJ now faces two fundamental questions: Can it issue an advisory opinion in the case, and, if so, what should it say? There is almost a complete lack of case law on such issues, and so the judges' desire (or lack thereof) to answer the second question will almost certainly dictate their response to the first. By engaging in the GA's debate, the ICJ risks losing any remaining air of impartiality; by demurring, it reinforces the belief that only political bodies can address political questions.
Although the court has in the past acted primarily as a binding arbiter for willing parties, those in support of this week's hearings point to Article 65 of the UN's charter, which says that the ICJ “may give an advisory opinion on any legal question at the request of whatever body may be authorized,” including the GA. The court would be loath to construe the case as within its jurisdiction and nevertheless dodge the substantive question -- accepting Britain's logic that a courthouse is not the proper place for such issues would be the same as rejecting the authority of international law.
Israel, meanwhile, has protested the hearings on procedural grounds. The request for an opinion was made in the context of an emergency special session, said Tal Becker, legal counsel to Israel's Permanent Mission to the UN. Such sessions, Becker explained to me, are meant for times of emergency when the Security Council is failing to act and the General Assembly isn't in session.
“One has to wonder whether the court has the courage to tell the General Assembly that for a long time they've been violating their own procedures,” said Becker.
Although the Israeli government maintains emphatically that the separation barrier is a legal, proportional defense against terrorist attacks, the fact that it chose not to present oral arguments at the hearings suggests that it understands just how weak its substantive arguments are.
The Fourth Geneva Convention does state that occupying forces “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” But Israel would be hard-pressed to convince the court that the Jewish settlements the separation fence goes out of its way to protect are “necessary as a result of the” 1967 War. About 90 percent of the barrier's length lies on the Palestinian side of the “Green Line,” the internationally recognized pre-1967 border. It winds its way back and forth, making deep incisions into the West Bank to ensure that all Israeli settlements -- no matter how isolated or illegal -- are on its western side.
A handful of Palestinian towns, most notably Qalqilya, are already completely surrounded by the barrier in a way that reeks of ghetto; numerous more are slated for a similar fate. Groups like Amnesty International and the International Committee of the Red Cross have argued that Israel's expropriation of territory violates international human-rights law.
Becker told me that both sides have agreed that the future of the settlements is a matter for negotiation. Israel cannot be expected to leave the settlers undefended, he said. Furthermore, the barrier protects Israel proper against terrorist intrusions.
But barriers could have far more easily surrounded individual Israeli settlements than the entire West Bank. And while nobody disputes Israel's right to build a barrier on its side of the Green Line, many argue with the logic behind the barrier's route.
Yet, as Becker says, “This is an inherently political issue. It's highly controversial. It's precisely the type of issue that's not suited for an advisory opinion.”
Such an assessment relegates the ICJ to the rather trivial role of international arbiter, merely deciding cases brought by two consenting parties. How can it issue advisory opinions on strictly legal matters when matters of international law are so rarely divorced from politics? And when it does decide to issue opinions, do they carry any real weight at all?
The ICJ's decision in this case could actually serve as an impetus for change in the Middle East. Israeli Prime Minister Ariel Sharon's government has already expressed a willingness to reconsider the barrier's route. A well-crafted decision could presumably serve both to influence Israeli and U.S. policies in the region and to bolster the reputation and influence of international law.
Ady Barkan is a sophomore at Columbia University and a senior editor of the Columbia Political Review.
