Lawfare 
By Jeremy Rabkin
July 14, 2004
Wall Street Journal
http://online.wsj.com/PA2VJBNA4R/snippet/0,,SB108967415677961803-search,00.html http://online.wsj.com/PA2VJBNA4R/snippet/0,,SB108967415677961803-search,00.html 
Maj. Michael Newton, a military lawyer who teaches at West Point, coined a new term earlier this year“lawfare.” It is the pursuit of strategic aims, the traditional domain of warfare, through aggressive legal maneuvers. Last Friday’s decision by the International Court of Justice (ICJ), holding Israel’s security fence in violation of international law, is another milestone in the onward march of “lawfare”. The ICJ has now confirmed that “lawfare” and warfare can be pursued simultaneously.
The terror war against Israel, launched in the summer of 2000, has by now resulted in the deaths of nearly a thousand Israeli civilians. The security fence, by greatly impeding the movement of would-be terrorists into Israel, has helped to achieve a sharp decline in terror attacks over the past year. Nonetheless, the ICJ admonished that the nations of the world are obligated, not to pressure Palestinians to abandon terrorism, but to pressure Israel to dismantle its security fence.
Most of the Court’s reasoning…is superficially plausibleso long as one ignores the actual political context of the dispute. Perhaps the Children’s Rights Convention or the Fourth Geneva Convention do provide arguments against disrupting the free movement of innocent Palestinians. But the arguments are more plausible if one ignores the terror threat to Israeli lives, as the Court essentially does. In concluding that the fence sits on “occupied territory,” the Court assumes that the armistice lines of 1949 are Israel’s final borders, though never accepted as such by Israel’s neighbors. In concluding that Israel cannot undertake intrusive measures to protect “illegal settlements,” the Court assumes that Jews had no claim to return to places, like the Old City of Jerusalem, from which they were forcibly expelled by Arab armies in 1949. Who now has what rights in what territory is at the heart of the dispute. Stripped of its technicalities, the case here was Palestine v. Israel. And Israel lost by 14-1. 
The statute of the ICJ provides that the Court may only decide disputes submitted by states and then only with the consent of the states that are parties to the dispute… The traditional approach to international arbitration would have barred the Court from entering into this most intractable international conflict. Palestine, since it is not a recognized state, cannot sue before the ICJ in its own name. And since Israel assuredly did not consent to let the legality of the fence be decided by the ICJ. 
The U.N. General Assembly, however, at the prompting of the Arab states asked the Court last December to provide an “advisory opinion” on the dispute over the fence. The U.N. Charter allows for this procedure, but only in regard to “legal issues” and only in conformity with the overall scheme of the Charter. Here, the General Assembly was effectively asking the ICJ to endorse its own political conclusions, with its resolution describing the fence as a “wall” (most of its is, in fact, chain-link construction) on “occupied territory including East Jerusalem.” The General Assembly was also seeking to have the ICJ do an end-run around the Security Council, which is supposed to have primary responsibility for resolving threats to peace (while at the same time circumventing the legal requirement that Israel consent to be judged in a case to which it was a party). 
The Council had exercised this responsibility only a few weeks earlier, by endorsing a “road map to peace” which stipulated that ultimate bordersand such questions as the ultimate status of Jerusalemshould be settled between the Palestinians and the Israelis in direct negotiations. The ICJ’s ruling is likely to prove a genuine obstacle to the step-by-step bargaining process envisioned in the road map. How can a Palestinian representative, for example, now embrace a peace plan that cedes less than full sovereign control of the Old City of Jerusalem, when the highest international court has declared that Palestinians should have the right to oust all Israeli claims to that place? How can Israel put any trust in international guarantees when even the ICJ seems so indifferent to its life-and-death concerns? 
The Court had many legal grounds for refusing to decide this case. And such arguments were pressed on the Court not only by the Israeli government but by the U.S., by Russia, by the European Union and a majority of EU member states. All the sponsors of the “road map,” in other words, urged the Court to stay out of this heated political conflict. Many other governments around the world took the same view. 
Given the membership of the Court, where states hostile to Israel are plentifully represented, condemnation of the fence was to be expected. Most dismaying, however, was that all five judges from EU states (UK, France, Germany, Netherlands, Slovakia) went along with the majority. Only the dissent of the American judge, Thomas Buergenthal, argued against taking this leap into the heart of the Mideast conflict. 
Israel has already announced that it will ignore the Court’s decision. American officials have vowed to veto any resolution at the Security Council aimed at enforcing it. But European governments, already so eager to distance themselves from Israel, may find it much harder to disclaim what the ICJand all its European judgeshave pronounced to be the legal rights and wrongs of the Mideast conflict. For Yasser Arafat, the decision now looks like an unalloyed boon, tossed to him without extracting any serious effort to help suppress ongoing terrorist activities. 
In effect, the ICJ now claims that countries beset by terrorism must ignore terror threats and focus on the Court’s priorities… To those who argue that the U.S. should join the new International Criminal Court, because that new court will be moderated in its rulings by the influence of European members, this ruling of an older U.N. court should be sobering. The ruling raises still broader questions about the U.N.’s capacity to contribute to any serious international effort against terrorism. Even U.N. judges, we now see, have other priorities.