A Black Day for International Law 


by Avi Davis
July 16, 2004 
http://www.israelnationalnews.com/index.php3 Arutz Sheva - IsraelNationalNews.com 
http://www.israelnationalnews.com/article.php3?id=3945 http://www.israelnationalnews.com/article.php3?id=3945 

It's a neat concept. An international court developed to adjudicate disputes between contending nations. Those who dreamed of a world government, where a single legislature would execute one body of laws to which all nations would be bound, must have been elated. With the establishment of the International Court of Justice, the idea that nations could settle their differences before a panel of eminent, impartial jurists, without resort to force, finally seemed to have come of age. 

Put that notion to rest. The decision, last week, of the International Court of Justice to present an adverse advisory opinion on Israel's construction of a fence in the West Bank has exposed the underlying flaws of any global deliberative body: inherent bias, racial prejudice and the kind of political manipulation that we have long come to associate with that other august body of impartial governance – the United Nations. 

The International Court of Justice was originally mandated to adjudicate on cases of territorial disputes between states. This was in keeping with the general tenor of international law, which customarily did not involve itself with internal matters of states. That orientation has shifted in recent years, as both international humanitarian law and international environmental law have both gained greater prominence. The developing interest of the Court in issues of world environmental degradation or the abuse of human rights has seemingly created a new jurisdiction for the ICJ - one that allows it to penetrate national sovereign boundaries and pass judgment directly on matters that were formerly restricted to the sovereign domain.

In many ways this has had its positive results. The alleged crimes of Slobodan Milosevic of Yugoslavia, and those of the Hutu leaders in Rwanda, certainly warranted the intervention of an international judicial body, when no local court could nor would make determinations of fact. But there are nevertheless limits to this kind of judicial intervention. According to the ICJ's own rules, a dispute between two nations cannot be heard unless the two contending states agree to it. The rules and the law are not clear at all about contending parties where one is not a state, but an administrative body, such as the Palestinian Authority. 

The increasing encroachment of international humanitarian law on sovereign jurisdiction has many nations alarmed. The natural reflex of any government when its own jurisdiction is challenged is to protect it. Thus, the decision of the United States to withdraw from the Treaty of Rome's establishment of the International Criminal Court, a policy predicated on American unwillingness to expose US citizens to the vagaries of a court that could become highly politicized and not geared toward the genuine pursuit of crimes of an international nature. 

Those fears now appear to have been well grounded. In agreeing to provide an advisory opinion on the West Bank fence issue and then issuing an opinion that smacks of blatant political bias, the ICJ has assaulted the very concept of impartial and independent adjudication at the foundation of its mandate. 

There are several grounds for this charge. First, the Court accepted jurisdiction in the matter when one of the disputants refused to participate; second, it accepted jurisdiction when one of the disputants is not a sovereign state; third, it adjudicated on a matter that has been the subject of negotiations between the competing interests for more than eleven years, thereby placing itself in the midst of an international political dispute; fourth, it took no interest whatsoever in the claims and motivations of one of those parties, ignoring entirely the humanitarian context for the fence's construction. 

Even more ruinous to the Court's credibility and reputation were the majority's barefaced tolerance of terrorism and tacit acceptance that the Court could and should dictate an ultimate territorial solution to the Arab-Israeli conflict. 

Take, for instance, the opinion of Judge Awn Al-Khasawneh: 

Whilst there is nothing wrong in calling on protagonists to negotiate in good faith... no one should be oblivious that negotiations are a means to an end and cannot in themselves replace that end. 

Or Judge Nabil Elaraby: 

I wholeheartedly subscribe to the view… that the breaches by both sides of the fundamental rules of humanitarian law reside in the illegality of the Israeli occupation regime itself. Occupation, as an illegal and temporary situation, is at the heart of the whole problem. The only viable prescription to end the grave violations of international humanitarian law is to end occupation.

Or Judge Pieter Koojimans:

Resolutions 1368 and 1373 refer to acts of international terrorism as constituting a threat to international peace and security; they therefore have no immediate bearing on terrorist acts originating within a territory which is under control of the State which is also the victim of these acts. And Israel does not claim that these acts have their origin elsewhere. The Court therefore rightly concludes that the situation is different from that contemplated by resolutions 1368 and 1373 and that consequently Article 51 (describing a nation's right of self-defense) of the Charter cannot be invoked by Israel.

The formalistic application of the law, the brazen disrespect for the conditions and context for the construction of the wall and the inability of any of the justices, including the lone dissenting voice, to resist the temptation to rule on the legality or illegality of Israel's control of the West Bank (a matter it was never called upon to address) has sent the world a chilling message: property rights are of greater importance to international law than the preservation of human life. 

That message will certainly resound with Palestinian suicide bombers, who have little interest in the preservation of human life. The tragic irony is that in the application of humanitarian principles, murderers will find the justification for the slaughter of innocent men, women and children. And for this, no greater damage can be imagined for the future efficacy of international law.