The World Court’s controversial advisory opinion condemns as illegal the security barrier being built by Israel not on its own land or on the border, but mostly on occupied Palestinian land in the West Bank.
But the reach of the ruling extends much further, with profound implications for international law, the Middle East and America’s “war” against terrorism.
The International Court of Justice ruled that Israel’s 400-mile-long system of fences, ditches and in some places walls, about one-third of which is already built, violates the rights of the Palestinians to self-determination, property, freedom of movement, choice of residence and pursuit of their livelihoods.
Unfortunately, these otherwise legally defensible conclusions were tainted by the court’s one-sided opinion. The UN General Assembly even sided with the Palestinians by labeling the barrier a wall.
Israel calls it a fence. More accurate and neutral is a security barrier, as it is termed by the UN secretary general. Yet the court, on the flimsy grounds of adopting the usage of the General Assembly, agreed to call it a wall.
More troubling is the imbalance in the court’s reasoning. It properly details the serious harm to Palestinians resulting from the usurpation of their land. The barrier separates farmers from fields, children from schools and patients from doctors while disrupting an already devastated economy.
But the court virtually ignores the terrorist attacks on Israel, which led to the construction of the barrier. This lack of evenhandedness prompted protests by four of the 15 judges–from Britain, Japan, the Netherlands and the United States.
The American judge, Thomas Buergenthal, rightly dissented on this ground.
For the court to rule the entire barrier illegal, he wrote, “without having before it or seeking . . . facts bearing directly on Israel’s legitimate right of self-defense, military necessity and security needs, given the repeated and deadly terrorist attacks in and upon Israel coming from the Occupied Palestinian Territory . . . , cannot be justified as a matter of law.”
Not that the barrier is necessarily lawful.
“It may well be,” Buergenthal explained, “that on a thorough analysis of all relevant facts, a finding could be made that some or all segments of the wall . . . violate international law.”
About a week before the World Court decision, the Israeli Supreme Court provided such an analysis. Weighing security evidence and taking into account harm to Palestinians, it ruled that a 20-mile segment near Jerusalem violates international and Israeli law.
As a result, the Israeli government is reviewing the routing of all uncompleted sections, with a view toward moving them closer to the border and farther from Palestinians.
Even the UN General Assembly, in responding to the court’s opinion, adopted a somewhat more balanced approach. A draft resolution, proposed by Jordan and supported by Arab states, simply called for compliance with the World Court ruling. That draft could have passed, but not by an overwhelming majority. In a bid to secure the 25 votes and the credibility of European Union support, the sponsors accepted improved language. The final resolution calls on the Palestinian Authority “to undertake visible efforts on the ground to arrest, disrupt and restrain” terrorist individuals and groups, and recognizes the right of all states including Israel “to counter deadly acts of violence against the civilian population.”
As a result, the resolution passed 150-6 (the U.S., Israel, Australia and three small Pacific island nations were opposed), with 10 abstentions.
In a clear snub, the EU insisted the resolution “acknowledge” rather than “accept” the World Court opinion. The one-sidedness of the opinion thus undermined its effectiveness, not only in the U.S. and Israel–where reaction has been sharply critical–but even in Europe.
The judges in The Hague would have been wiser not to bring upon themselves this slap on the wrist.
Perhaps most troubling to the EU was what Buergenthal calls the court’s “legally dubious” ruling against Israel’s right of self-defense. That inherent right applies only against other nations, opined the court. Hence Israel cannot invoke it to defend against terrorists.
This “formalistic approach,” in Buergenthal’s words, is at odds with UN Security Council resolutions adopted after Sept. 11, 2001, that recognized the inherent right of the U.S. to defend itself against terrorist attack.
But the court distinguished these resolutions, saying they upheld self-defense only against foreign terrorists, whereas Palestinian terrorists come from territory under Israeli jurisdiction as the occupying power.
This ill-advised rejection of Israel’s right of self-defense and the worries it poses for all nations facing terrorist threats had little practical effect, because Israel could still assert the related defenses of military exigency and state of necessity.
But on these defenses, the court was “not convinced” by the evidence. How could it be? Most of the evidence was simply not before it.
On the other hand, some elements of the court’s opinion, with important implications for Israel and the U.S., were unanimously adopted and solidly supported in international law.
Most important for Israel, all 15 judges rejected its long-standing argument that the West Bank is not occupied territory because there was no sovereign power in the territory before the 1967 war.
There was no need to resolve historical sovereignty disputes, the court ruled, because Israel occupied the West Bank by force in 1967.
From this all 15 judges further concluded that Israeli settlements in the West Bank are illegal. They violate the Geneva Conventions prohibition against an occupying power’s transferring part of its civilian population into the occupied territory.
These two propositions do far more damage to Israel’s long-term legal position than do the court’s rulings on the barrier, which Israel has always claimed is temporary. By constructing the barrier, not on the border or as near as feasible to it, but on Palestinian land in places encroaching as much as 8 miles in order to enclose some 80 percent of Jewish settlers on the West Bank, Israel has engaged in self-defeating excess.
The result was to provoke a unanimous World Court ruling that removes whatever legal cover Israel might assert for its territorial claims.
The court’s advisory opinion likewise unanimously adopts two positions that shred the Bush administration’s legal cover for excesses in the U.S. “war” against terrorism.
When challenged by UN human-rights bodies for the targeted assassination of an alleged Al Qaeda operative in Yemen, and by the Inter-American Commission on Human Rights for imprisoning alleged enemy combatants at the U.S. naval base in Guantanamo Bay, Cuba, the U.S. has offered two defenses.
First, the U.S., like Israel, argues that international human-rights law does not apply in time of war, which is governed only by the laws of war. Not so, ruled the World Court unanimously.
Second, the U.S. argues that its treaty obligations under the main UN human-rights treaty do not apply to Guantanamo, which is outside U.S. territory. Israel likewise argued that human-rights treaties do not apply in the West Bank, which is outside its territory. Not so, the court ruled unanimously.
Human-rights treaties apply to any territory subject to a state’s jurisdiction, which includes the West Bank for Israel and, by implication, Guantanamo for the U.S.
Especially following revelations of American torture at Abu Ghraib prison in Iraq, the court’s rulings that human-rights law applies in wartime and in occupied territories offer additional international safeguards against abuse of power.
In the long run, the unanimous parts of the advisory opinion may be more important to Israelis, Palestinians, Americans and the world, than the court’s slighting of the security issues and its unduly narrow reading of self-defense.
