Washington Report on Middle East Affairs, March 2004, pages 30-31

United Nations Report

 

General Assembly Asks International Court Of Justice to Rule on Israel’s Wall

	Israeli workers constructing a separation wall position sections of concrete between East Jerusalem and the West Bank village of Abu Dis, Jan. 12, 2004 (photo credit Reuters/Mahfouz Abu Turk).

 

By Ian Williams

IN RESPONSE TO the request of the U.N. Special General Assembly, Secretary-General Kofi Annan reported back on Sharon’s Wall. To the astonishment of nobody but Likud supporters in Israel and Washington, he found it was a bad thing. The Israelis had not stopped building the wall, despite the previous resolution, Annan pointed out, and it already was causing harm to thousands of Palestinians in its wake and would cause even more if continued.

Tired of being told that the General Assembly had no authority—but noticing how upset Israel, its American sponsor and, increasingly, the British are when the body condemns Israel—the Palestinians’ lawyers had come back with a power that the U.N. Charter does give the Assembly: the ability to refer issues to the International Court of Justice (ICJ) in The Hague.

The Arab group moved a resolution calling on the Court to rule on “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?”

But the vote, 90 to 8 with 74 abstentions, showed the insidious effect of British pandering to the U.S. and Israel on the European Union members, who abstained because, as the British alleged, this would “politicize” the Court. The ICJ, however—which spends its time adjudicating such presumably non-political issues as boundaries between states, or the allegation that Yugoslavia was guilty of genocide, or the American mining of Nicaraguan harbors—seems happy to go ahead.

The most specious argument against the resolution was that it should not go to the Court because the General Assembly already had determined that Israel’s building the wall was in breach of the Geneva Convention. Since the same critics usually insist that the General Assembly resolutions are not binding, however, surely it was not inappropriate to go to the body entrusted by the U.N. with interpreting international law.

Of course, the British also must explain—since they do accept that the Geneva Convention applies, and is being broken—why they abstained when the U.S. vetoed the resolution on the Wall in the Security Council. Had the resolution gone through then, there would have been no need for a reference to The Hague. But we must remember that we are talking expedient politics here, not logic—let alone law.

Predictably, Israel claimed the 74 abstentions as votes in its support. This was not what the abstainers were saying, however, since most of them said Israel should stop. Indeed it was the European Union which, only a month before, had sponsored the resolution calling upon Israel to stop the construction!

By its normal standards the Court has moved extremely quickly, setting Jan. 30 as the deadline for parties to submit written statements to the Court. Also, it added, “taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion, Palestine may also submit to the Court a written statement on the question within the above time-limit.”

The ICJ agreed as well to allow the Palestine Mission to appear for the oral hearings, which it set for Feb. 23, 2004.

The issue is exposing the contradictory impulses of the Israeli establishment. On the one hand, it expresses total contempt for international law and organizations. On the other, it shows a deep need for vindication of its own perceived legality. This is not surprising, considering not only that the state owes its very existence to acts of the League of Nations and the United Nations, but also the importance of law in Jewish tradition.

As a result, some Israeli commentators were quick to point out the implications of an ICJ ruling. It was the Court’s ruling which paved the way for Namibian independence from apartheid South Africa, and it was a ruling by the Court, backed by a Security Council resolution, which has kept every country in the world from recognizing Morocco’s annexation of Western Sahara.

Of particular importance is the issue of the pre-1967 Green Line, the armistice line. Israel’s “official” boundaries are those drawn up by the U.N. partition resolution of 1947, but there had been de facto recognition, indeed pushed for by Israel—before 1967, of course—that the Green Line was Israel’s international frontier. Even then, of course, there was some creative ambiguity, as the apocryphal American statesman told the Israelis Washington was prepared to guarantee its borders—but which ones?

So the Israeli argument, that not even the U.S. accepts explicitly, is that the occupied territories are not, in legal terms, occupied—rather, they are “disputed.” And since the Clinton administration, the U.S. position has edged toward that, with a constant attempt to exclude U.N. decisions and international law in favor of “negotiations.”

Indeed, the first line of the Israeli legal argument—which, however, has little chance of success—is that the Court has no jurisdiction. The second line is that ICJ rulings are not “binding.” This is true, but they certainly are the most authoritative statements of international law available, and they can be implemented by the United Nations.

The defining Security Council resolutions on the Green Line are 242 and 338—which, once again, are masterpieces of diplomatic ambiguity. The English text, at American insistence, said that Israel should withdraw from “territories,” omitting the preceding definite article. Most commentators—and, it appears, both Palestinian and Israeli negotiators in the last serious talks—accept that this refers to small mutual adjustments in the Green Line.

If the ICJ is to consider the “Wall,” however, it will have to consider the Green Line and its status. It very likely will rule that the territories are indeed occupied, that the Geneva Convention applies, and that, in building the wall, Israel is violating them. And it may say some binding things about the Green Line.

So the Israelis are assembling a serious team to send to The Hague. The Palestinians can only pray that the Israelis make more use of the services of prominent pro-Israel American lawyer Alan Dershowitz, who has been in Israel to help formulate the case. The former attorney for O.J. Simpson has previously advocated the use of torture in terrorist cases, to the distress of many of his co-religionists, and indeed of the American legal profession. In the U.S. and Israel, Dershowitz is calumniating the Court as “giving kangaroos a bad name.” Apparently he thinks the rule of law only applies when it is convenient for himself.

Despite his bluster, Israel’s chief lawyer at The Hague will be Prof. Daniel Bethlehem of Cambridge University. It was he who persuaded the Israeli government to rescind its earlier decision to cooperate with Kofi Annan’s inquiry into the Jenin siege. Bethlehem was astute enough to realize that the Israelis had indeed laid themselves open to charges under international humanitarian rights law—and certainly, following his advice, the Israelis won the PR battle.

When, despite the U.N.’s exclusion from Jenin, the report came out, astute handling directed media attention to the commission’s rebuttal of the wilder claims of some Palestinians, rather than its substantiation of serious legal breaches—not least of which was the actual presence of Israeli forces in the city in the first place!

When the Court’s decision on the Wall is reported back to the U.N., it almost certainly will be the subject of a Security Council resolution on implementing its findings. The U.S. can be guaranteed to veto that—for a price. If the U.S., which is preaching international legality to the rest of the world, were to veto the most authoritative statement of international law, it will want some deep cover—and major concessions from Israel. On the other hand, even George W. Bush had reprimanded Sharon over the Wall, and he may not be inclined to take international heat to defend something with which he disagrees!

 

The Development Fund for Iraq

If one checks the Web site of the Development Fund for Iraq, or DFI (<www.cpairaq.org/budget/DFI_intro1.html>), the piggy bank into which all oil revenues and any recovered funds from Saddam Hussain are supposed to go, one finds an interesting reflection of the mixed American positions. According to the site, the fund, which is under the control of the Coalition Provisional Authority (aka Paul Bremer and the Pentagon) is authorized by U.N. Resolution 1483 “and the laws and usages of war.” Presumably someone in the Pentagon could not swallow the bitter pill of U.N. authority without sweetening.

Of course, the Dec. 11 announcement by Deputy Defense Secretary Paul Wolfowitz that the CPA would only award contracts to coalition partners makes it look as if the operative law of war in use here is “To the victor go the spoils!” While it was hardly an inducement to other countries to cooperate in James Baker’s debt-alleviation globe trot, however, it did provide an inducement for other countries to contribute to the U.N. Funds for Iraq which were opened in December.

Even so, because of 1483, in December the U.N.’s Oil for Food program, closed down in November, handed over its $2.6 billion balance to the occupation authorities in Iraq. Added to three previous payments, this meant it had handed over $5.6 billion to the Coalition Provisional Authority.

Meanwhile, American officials are scouring the world looking for Iraqi government accounts to raid for the DFI, and no one should be too surprised that some of these officials think that there are billions in Syria. If ever you lose a comb, or a coat hanger, you should try Damascus, since some people in the Pentagon seem to think that anything from missiles, to money, to fundamentalist mullahs and fighters can be found there when they can’t find them anywhere else.

Ian Williams is a free-lance journalist based at the United Nations.

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