Who’s Defying The World Court? By James S. Tisch July 23, 2004 The Jewish Week http://www.thejewishweek.com/top/editletcontent.php3?artid=3570 http://www.thejewishweek.com/top/editletcontent.php3?artid=3570 When the UN General Assembly tells Israel, “You can’t defy an International Court of Justice opinion and build a wall in occupied territory,” the Israeli ambassador ought to put his arm around his Moroccan colleague’s shoulder and ask the assembled diplomats, “Which one of us are you talking to?” In 1975, the ICJ issued an advisory opinion on Morocco’s claim to the former Spanish colony of Western Sahara. The court found the claim to self-determination by the indigenous Saharawi population to be superior. Morocco rejected the opinion in a dramatic fashion by sending 350,000 Moroccan civilians to Western Sahara in the “Green March.” Thirty years later, negotiations continue on the status of Western Sahara. Sanctions were never enacted against Morocco for non-compliance, though the Palestinians are already talking about such measures in Israel’s case. Six years after the ICJ opinion, Morocco began to build a thousand-mile security barrier through the middle of Western Sahara to protect against Saharawi attacks. The “berm,” as it is known, is a 10-foot high earthen rampart fortified with an estimated 1 million to 2 million landmines that have killed or injured dozens of people. The berm encloses nearly 80 percent of Western Sahara, while less than 12 percent of the West Bank is on the Israeli side of the non-lethal security fence. France, Iceland and the United States — democracies like Israel — have defied the ICJ on grounds of national security and sovereignty without any threat of sanctions. In May 1973, New Zealand asked the ICJ to order France to end atmospheric nuclear testing in the South Pacific. France responded that it did not consider the court competent to hear the case, did not accept the court’s jurisdiction and would not participate in any proceedings. In June that year the ICJ issued an order to halt its tests. The next month France responded — with a 5-kiloton explosion. Eleven more atmospheric tests were conducted over the next year until its nuclear weapons program no longer required them. In 1974, the ICJ ruled against Iceland’s unilateral expansion of its exclusive fishing zone, following a complaint brought by Britain. Iceland disregarded the decision because fishing represented such a large part of Iceland’s economy that it was considered a national security interest. In the subsequent “Cod Wars,” the Icelandic Coast Guard clashed with British frigates that had been dispatched to protect the British fishing fleet in the contested area. The dispute ended in 1976 with a negotiated agreement that granted Iceland almost all of its demands. In 1999, the U.S. Supreme Court disregarded an ICJ order to stay the execution in Arizona of Walter LaGrand, a German citizen. The Supreme Court ruled: “With regard to the action against the United States [by Germany], which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity.” Like the U.S., Israel has declared that its Supreme Court takes precedence over the ICJ. The Israeli Supreme Court decided on June 30 that “it is the security perspective — and not the political one — which must examine the route on its security merits alone, without regard for the location of the Green Line,” referring to the 1949 armistice line that the ICJ found decisive in its opinion. After the U.S. lost the jurisdictional decision on a 1984 Nicaraguan complaint to the ICJ, Washington withdrew from the proceedings. Abraham Sofaer, the State Department legal adviser at the time, said: “We believe that when a nation asserts a right to use force illegally and acts on that assertion, other affected nations have the right to counter such illegal activities. The United States cannot rely on the ICJ to decide such questions properly and fairly. Indeed, no state can do so.” Similarly, Israel’s security fence is a self-defense measure against an illegal use of force: terrorism. As the American and British judges confirmed in their separate opinions, the ICJ ignored Palestinian terrorism and denied that Israel had a right to self-defense. Clearly Israel “cannot rely on the ICJ to decide such questions properly and fairly.” Israel is adjusting the route of the security fence following the decision of its own highly respected Supreme Court, which balanced Israel’s need to prevent suicide bombings with the humanitarian concerns of Palestinian civilians. Regardless of the result at the United Nations, Israel should build the security fence in conformity with the law and with the obligation to protect its citizens from terror. n James S. Tisch is chairman of the Conference of Presidents of Major American Jewish Organizations.