Washington Report on Middle East Affairs, April 2004, pages 8-9, 14

United Nations Report

 

Much Ado About International Court of Justice Hearing on Israel’s Apartheid Wall

 

By Ian Williams

Thousands of Palestinians and Israelis demonstrate Feb. 7 on the Palestinian side of Israel’s controversial “separation barrier” in the East Jerusalem neighborhood of Abu Dis demanding that the wall be dismantled (AFP photo/Yoav Lemmer).

ON JAN. 30, over 40 countries, including the U.S. and Israel, submitted written briefs to the International Court of Justice (ICJ) in The Hague on the question put to it by the United Nations General Assembly: “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?”

Oral pleadings will take place Feb. 23.

In almost every media report about the court case, Israeli and American spin doctors have managed to insert that the Court’s findings are “not binding.” That, however, is not the view of most legal experts internationally. True, the Court cannot enforce its judgments—but its findings are an irrefutably authoritative statement of international law. It is ICJ judgments that paved the way for detaching Namibia from apartheid South Africa, and which have been the last bastion against Moroccan annexation of Western Sahara.

And, should Israel persist in its course of action following an unfavorable verdict, it will not be able to plead, as it has done for decades, its own idiosyncratic reading of the law. Instead it will be a clear international scofflaw. This may come as no surprise to Washington Report readers, of course, but will undoubtedly wound the tender sensibilities of many Israel-firsters.

Despite a fairly constant stream of negative statements about the United Nations from Israel and its supporters, the Jewish state does in fact have an existential problem in undermining international law and the United Nations. Unless its attorneys can call Moses and the Lord Almighty into the witness box, Israel’s legal statehood depends on a series of decisions made firstly by the League of Nations, and culminating in the United Nations partition resolution of 1947.

For years, however, Israel has benefited from creative ambiguity about the status of its territory and boundaries. In the years prior to 1967, it claimed the “Green Line” as its international boundary. Increasingly the EU and the U.S. have regarded it as such—as did the Israelis before they occupied the West Bank. But since then the Israelis have denied the significance of the Green Line, saying its frontier must be settled in negotiations.

In fact, Israel’s only internationally accepted boundary is the partition line of 1947. While this may seem a far-fetched legal fiction, in fact, except for a few heavily bribed governments, most nations have not placed their embassies to Israel in Jerusalem. Their refusal to do so is precisely because, under Resolution 181 that partitioned mandatory Palestine, the city is a “corpus separatum” under United Nations control, and not accepted as Israeli territory.

Despite their public derision, the Israelis are under no illusions about the significance of the case. They have asked the U.S. State Department to hold off publication of its annual country-by-country Human Rights Report until after the World Court delivers its verdict. Prime Minister Ariel Sharon well knows that the State Department will condemn the wall and its consequences for the Palestinians.

The Israeli government also is racing through a hearing on the Wall in the Israeli Supreme Court, in order to get a judgment it can wave about before the ICJ. Reportedly, however, the Israeli attorney general himself is worried that he may not have a convincing enough case even for the relatively tame domestic court. In an attempt to head off criticism, Sharon is dangling carrots such as an adjustment of the wall’s route.

Despite the attorney general’s worries, the official Israeli line is that the wall is legitimate for self-defense. Since almost no other country in the world accepts that point of view, there should be no rational objection to this moot point being cleared up by the ICJ, the most authoritative body in the field of international law. Logic, however, does not always win in international affairs—at least not when Israel and the U.S. get together.

With Washington’s help, Israel has managed to bully some Europeans into an equally contradictory position: that the wall is indeed illegal, but that it would be unhelpful for the ICJ to say so.

Nevertheless, Israel’s high-powered legal team, led by Prof. Daniel Bethlehem of Cambridge University, already has entered written pleas.

Interestingly, the Israelis take it for granted that the Court will rule against them, even though several international lawyers have pointed out that the judges actually are a fairly conservative bunch, many of them former legal advisers to foreign ministries. They certainly ducked a chance to take a tilt at the U.S. in their ambivalent judgment in the case brought against Washington by Iran for attacking oil installations in the Gulf.

Attorney Bethlehem, however, is a renowned lawyer, with a realism that borders on cynicism, who probably is himself convinced that Israel’s legal case is insubstantial. It was he who persuaded the Sharon government to withdraw cooperation from Kofi Annan’s inquiry into Jenin—since, Bethlehem pointed out, the IDF was indeed violating international law, and the inquiry would show that. So Sharon followed his tactical advice, which was to besmirch the inquiry and its findings in advance, and to make sure that Israel’s version was out first. That persuaded half the world’s press that the U.N.’s Jenin Report was a vindication of the Israeli position, when it was in fact a detailed condemnation.

Bethlehem’s advice with regard to the ICJ hearing is that Israel should argue against the jurisdiction of the Court, and then—as backup—plead security needs, addressing itself to public opinion as much as the Court.

After much internal wrangling, the Israeli cabinet decided on Feb. 12 not to make an official appearance before the International Court of Justice in The Hague when oral pleadings begin Feb. 23. Instead Israel will confine itself to its January written submission, which, they imply, restricted itself to the argument that the Court did not have the authority to hold the hearings. According to Israeli Foreign Ministry legal adviser Alan Baker, “after having examined all the written statements that were submitted by other countries, Israel does not feel it has anything to add.”

Israeli spokesmen seem to have come to the—probably accurate—conclusion that, whether they appear or not, they are going to lose, which led Palestine Ambassador to the U.N. Nasser Al Kidwa to sneer, “If you have a defendable case, you defend it. If you don’t have a defendable case, you boycott the court.”

The Palestinian Authority claimed on Feb. 13 that the Israelis had confiscated at Ben-Gurion Airport their documentation for the trial—which, one supposes, shows they really do care.

While it will not have attorneys in the court pleading, Israel will have a massive public relations team there, with press spokespeople from the Israeli Foreign Ministry ready to put their spin on the result, and hundreds of demonstrators flown in on special cheap fares. There are also macabre plans to bring the remains of the bus blown up in Jerusalem.

The special talents of Harvard Law professor Alan Dershowitz will be used solely in the U.S., where the plan is to conflate the court with the U.N. and present it as a sort of General Assembly with kangaroos in wigs. Wisely, the Israelis are not using Dershowitz in The Hague, since his public statements in favor of torture for terrorists and the random destruction of Palestinian villages after suicide attacks would have had him in the dock at Nuremburg had his suggestions been made in another context.

 

A Failed Pre-Emptive Move

On Thursday, Jan. 29—the day before the closing date for written submissions to the ICJ—the U.S. tried for a statement from the Security Council condemning the suicide bombing in Jerusalem that killed 10 people. It was an effort clearly framed with the Court timetable in mind.

Not everyone was prepared to play the game, however. The day before, the Israelis had killed nine Palestinians, and new Council member Algeria led the opposition, insisting that any statement that condemned the one had to condemn the other. This was not what the U.S. wanted. Compromises were floated, deploying, as one British diplomat put it, “the hierarchy of appropriate verbs.” When the U.S. and Britain refused to accept parity, the choice deadlocked. The Iraq allies were prepared to “condemn” the bombing, but only to “deplore” the Israeli killings.

Algeria stuck its ground for parity in revulsion, which earned it the blame for the deadlock and lack of statement. That, in turn, allowed Israel’s U.N. ambassador, Dan Gillerman, to immediately schedule a news conference at the U.N. the following day to condemn “the U.N.’s lack of response to terrorism.” and to attack the organization, and Kofi Annan, for its anti-Israel bias and allegedly tepid response to terrorism.

One of Gillerman’s specific targets was a balanced statement from the secretary-general, who had said, “Once again, violence and terror have claimed innocent lives in the Middle East. Once again, I condemn those who resort to such methods. Once again, I appeal, to Israelis and Palestinians alike, to rise above feelings of anger and vengeance, however natural, and to devote all their energies to negotiating a true and lasting peace in which two peoples will live side by side, each in their own State.”

Not one for balance, Gillerman also quoted at length from the U.N.’s “anti-Israel” submission to the Court—which in turn caused a storm, since ICJ rules say that submissions are confidential. It may have been leaked. But the ambassador was right. The U.N. submission is indeed anti-Israel, since it detailed the numerous resolutions, laws and conventions Israel is ignoring, and included the various reports that show how it is ignoring them.

While accurate about the U.N., the Israeli government is simply deluding itself about many other submissions to the ICJ. Israeli newspapers were reporting the EU, France, Russia and even South Africa, a strong Palestinian supporter, as making submissions favorable to Israel’s position. Diplomats from several of those countries were entirely dismissive of the Israeli claims, which they said would be rebutted in their oral pleas on Feb 23.

Even the U.S., the UK and some other countries have backed Israel only to the extent of saying that the Court should not take the case. The position of the British Foreign Office sums up the illogicality. According to Baroness Symonds, “We do not believe that the security fence is in the right place. The 1967 line is where it should be, or indeed on the Israeli side of that line.” The official Foreign Office statement declared, “Our concerns relate to the role of the court, not the legality of the route of the fence. It remains our view that the building of the fence on Palestinian land is unlawful.”

To be fair, Britain has some naked self interest involved. Its own treaty of adherence to the Court bans suits by former colonies for any issue before the 1960s. Potentially, however, there could be an end run around that, if the General Assembly decided to refer to, say, a claim by, say, the inhabitants of Diego Garcia, for restitution. The results would not be “binding,” but certainly politically compelling for a British government.

Equally, Foreign Office pundits worry that the General Assembly could, for example, refer the whole question of the British and American attack on Iraq to the Court. They know exactly how legally dubious their position is. Fortunately for Tony Blair, not one member state has had the temerity to tweak the Eagle’s feathers by raising the issue of the invasion in the Assembly as a resolution, let alone referring it to the Court.

For its part, the U.S. has been very ambivalent about the ICJ’s jurisdiction ever since the Court found against it over mining Nicaraguan harbors. But it certainly would not welcome an advisory opinion from the Court on the Iraq invasion.

Palestinians’ friends and enemies alike have questioned the tactics of the Palestinian Mission to the U.N. Its constant reiteration and restating of resolutions is annoying and counterproductive, they say, and does not help the peace process or the road map. It is surprising, however, how many of them cannot bring themselves to condemn vociferously and publicly the Sharon cul-de-sac of peace, the expansion of settlements, the assassinations, the bombs on apartment buildings.

It is an astounding fact that Sharon’s bloodthirsty approach to the peace process should get less criticism, and certainly less tangible response from the West, than anything Israel has done since Sabra and Shatila. This reflects American pressure—and clever Israeli public relations, which has half-convinced even Europeans that to criticize the Israelis dropping a 500-pound bomb on an inhabited apartment block would smack of anti-Semitism. A strong statement from the Court would go some way to undermine several years of Israeli pressure.

But the Palestinians can already claim victory. Not only is Sharon talking about shifting the wall closer to the Green Line, but, they could argue, his talk about withdrawal from Gaza is an attempt to buy American support in the case.

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

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