The decision by the International Court of Justice (ICJ) to condemn the Israeli security barrier has dealt a serious blow to the credibility of international law. The ICJ decided that the barrier is illegal, that Israel should pull it down and that the U.N. General Assembly and Security Council should consider what further action ought to be taken. A U.N. General Assembly vote, demanding that Israel accept the ruling, is expected today. The likely passage of another anti-Israel motion in the General Assembly, along with the ICJ decision will only serve to further stoke the long-running Israeli-Palestinian conflict and do nothing to bring it to an end.
Some will argue that the ICJ ruling of July 9, 2004, should simply be ignored. After all, the judgment was merely an advisory opinion and so is not binding. Nor can the Palestinians practically, or politically, enforce the judgment. Yet the real danger stems from the way in which those who practice terrorism have been allowed to manipulate the international legal system.
None of this was preordained. The ICJ was at perfectly liberty not to take the Israeli security-barrier case. After all, 30 states had objected to the ICJ hearing the matter. Importantly, opponents of the proceedings included Britain, France, Russia, and the U.S., four of the five permanent members of the Security Council–and so able to block any proposed U.N. sanctions on the basis of an ICJ ruling.
The Israeli security barrier is not the sort of dispute that the ICJ was designed to handle. The court is, in effect, a civil court for the world’s sovereign states, not a criminal court that adjudicates on the laws of war. The notion that the ICJ should express opinions on the right to use force in international disputes has long been controversial. Still, that has not stopped the ICJ from accepting a suit by Serbia against NATO states for having the temerity to stop its persecution of Kosovo Albanians in 1999.
The case was only possible thanks to an act of political favoritism. Although the ICJ only rules on cases brought before it by states, it can issue non-binding, advisory opinions on matters referred by the U.N. General Assembly. The Palestinians, who have no state and so cannot approach the ICJ, had the U.N. General Assembly do the petitioning for them. The possibility that the U.N. General Assembly will extend the same favor to other stateless groups, such as the Kurds or the Gypsies, is close to zero.
Perhaps the most damaging aspect of the ICJ’s behavior was the way in which the court voluntarily stepped into the Israeli-Palestinian propaganda battle. Through a series of legal contortions, the ICJ came up with an opinion that supported the Palestinians and that largely ignored the cause of the barrier: Palestinian terrorism.
The ICJ mentioned that “Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population”, but did not characterize this violence as terrorism. The justices of the ICJ thereby turned a blind eye to illegality. Terrorism is a war crime, an act of unlawful belligerency that knowingly and deliberately violates the laws of war. Individuals and states that use terrorism ought to be considered political and moral pariahs. Instead, the ICJ has made the Israeli victims international legal outcasts while giving the Palestinian movement, which glorifies terrorism, a legal seal of approval.
The ICJ was particularly concerned about Israeli territorial ambitions in the West Bank. While there is no doubt that Israel wants to retain parts of the West Bank, the route of the barrier has been dictated overwhelmingly by security rather than territorial acquisition. Indeed, confirmation of this had been provided just a week before the ICJ ruling when the Israeli supreme court had ordered the barrier’s route to be changed to provide less security for Israel, but improved economic well being for the Palestinians.
The propaganda victory of a favorable ICJ ruling is exactly what Yasser Arafat ordered. For Palestinians, the security-barrier case is part of a broader effort to strip Israel of all legitimacy. The propaganda campaign is explicitly not about promoting the right of the Palestinians to a state in the West Bank and Gaza. Rather, as Michael Tarazi, a legal adviser to Palestinian negotiators, said recently to Jeffrey Goldberg of The New Yorker:
We have to look at the way the South Africans did it. The world is increasingly intolerant of the Zionist idea. We have to capture the imagination of the world. We have to make this an argument about apartheid.
For activists like Tarazi, Israeli control of the West Bank is actually a positive as it could end up destroying Israel itself. Unfortunately for Tarazi, Israel seems to have no intention of playing into his hands. The latest Israeli attempt to form a government of national unity should give prime minister Ariel Sharon the political strength to be able to withdraw all Israelis from the Gaza strip before then starting similar moves in the West Bank.
The Israelis will then, in effect, be forcing separation, an end to the occupation and de facto independence upon the Palestinians. Polls generally show that a majority of Israelis want the conflict to be over with, to stop occupying Palestinian areas and to dismantle most of the settlements. By contrast, all too many Palestinians seem to want the occupation to endure, so that they can continue their struggle, a sentiment that will now be fortified with international legality.
–Andrew Apostolou is director of research for the Foundation for the Defense of Democracies.