A law unto itself
The International Court of Justice stated what everyone already knew. What next, asks Ben Saul
Sore losers often blame the court, not themselves. A case in point is the polemical and hysterical attack on the International Court of Justice by Alan Dershowitz, a law professor at Harvard University (in The Jerusalem Post, 11 July 2004).
Recently the ICJ rendered a principled and well- reasoned opinion on the legal impact of Israel's wall in the Palestinian occupied territories. The ICJ cut through the political hype and partisanship affecting both sides of the dispute.
Yet Dershowitz makes some astonishing claims about the ICJ, even comparing it to a white racist court from the US deep south in the 1930s. Unfortunately, he either misunderstands basic features of international law, or deliberately misrepresents it.
It is nonsense to claim that Israel is excluded from the ICJ by "bigotry". As a member of the UN Israel has been a party to the ICJ's statute since 1949. The ICJ hears two types of cases: disputes between consenting countries, and advisory opinions requested by UN bodies.
Only the first type of case results in legally binding decisions. Yet countries are only bound if they have consented in advance to the ICJ hearing the case. For these types of cases Israel has chosen not to submit itself to the rule of international law. Far from being excluded by bigotry, Israel has excluded itself.
In advisory opinions countries which have an interest in the case enjoy procedural rights. Israel was given every opportunity to present its case to the ICJ. Indeed, Israel presented a large amount of documentary evidence, assisted by expert lawyers. Israel itself chose not to make oral arguments before the court, surrendering its right to advance its case in this way. Nonetheless, the ICJ observed that information presented by Israel provided important evidence in the case.
Israel also had the option of requesting the ICJ to appoint an ad hoc Israeli judge, to join the court for this particular case. Yet Israel chose to forego this opportunity.
Dershowitz also misrepresents the function of judges on the court, claiming that they represent the tyrannical views of their own countries. This is simply wrong, and unfairly maligns the integrity, character and independence of judges on the court.
Each judge is elected by the international community as an independent expert of international law, and not as a delegate of their government. To suggest that experienced and intelligent judges cannot separate the political views of their countries from their own legal views is insulting and ridiculous.
It is like suggesting to Dershowitz that he can only hold the same opinions as George Bush (which he increasingly does, in light of his appalling support for torturing terrorists. So much for free thinking by a Harvard law professor.)
Dershowitz also believes that the Israeli Supreme Court is the best forum to determine disputes about Israeli security. Undoubtedly it is, because the court has a long history of putting Israeli interests above the interests of Palestinians. Just because Palestinians can lodge cases in Israel does not mean that they get a fair hearing or a just outcome.
In fact, the Supreme Court has been extremely deferential to the government on security issues, refusing to interfere even when the basic human rights of many Palestinians are at stake. Ordering small changes to the route of the barrier does nothing to alleviate the fundamentally illegal foundations of the wall.
For this reason, the Israeli Supreme Court is much closer to the Mississippi courts of the 1930s than the ICJ, since it dispenses justice for Israelis, at the expense of Palestinians. It is not possible for Israeli courts to independently and impartially evaluate the rights of a foreign (enemy) people under military occupation.
This is precisely the virtue of moving the dispute to a neutral international court, which can evaluate the claims of both sides from a reflective distance, taking into account the interests of individuals and the international community as a whole.
Dershowitz then claims that the ICJ should only be a court of last resort, after exhausting domestic courts. But that misunderstands the nature of the ICJ, which only deals with disputes between countries or requests from the UN, not claims by persons.
The advisory opinion is not binding on Israel and does not create new law. It is simply a persuasive and accurate recognition of existing legal obligations violated by Israel in building and operating the wall. The opinion is not radical, but confirms what most governments, international lawyers and the UN already knew.
First, that Israel's human rights and humanitarian law duties apply in the occupied territories. Second, that human beings have legal rights which cannot be bargained away by politicians in a peace process. Third, that Israel gravely violated its duties to Palestinians in fundamental ways, without justification. Fourth, that Israel must remedy its violations by dismantling the wall and compensating its victims.
The opinion does not ignore the legitimate security interests of Israel. Nothing in the judgement prevents Israel building the wall along its own borders, following the Green Line. (To object that the Green Line is not a definitive border cuts both ways, since there is no reason why the final border could not move back west into Israel.)
The court simply objects to the route of this wall, which protects illegal Israeli settlements and in doing so treats Palestinian land as Israel's own. And this is the crux of the opinion, that the wall fundamentally undermines Palestinian self- determination, a right so long and callously denied.
It is also a salutary warning to the Security Council that the ICJ will step in when powerful countries prevent the council from doing its job. As the General Assembly endorses the ICJ's decision in a resolution this week, it is time for the Security Council to compel Israel's compliance with international law. The US must first stop obstructing the will of the international community. Mandatory sanctions are the next step, but more forceful measures may be required.
* The writer is a tutor in international law at the University of Oxford.