Why Israelis Are Now Bad-Mouthing the World Court

Reports of a case involving Israel that will be heard at The Hague on February 23 have troubled the government and people of the Jewish State and aroused concern among her American supporters. The International Court of Justice, the “World Court,” was requested by the U.N. Assembly to render an Advisory Opinion on the legal consequences arising from Israel 's construction of a barrier that will separate portions of the West Bank from Israeli territory.

The barrier will be a wall twenty-seven feet high. Designed and built to protect against terrorists, it is expected to run not only along Israel 's border, but also for an additional 200 miles or so. The additional mileage will enable the wall to run in and out of the West Bank, for the purpose of protecting major settlements. These will have the effect of separating and walling off local Palestinian communities.

The Sharon administration fears that the Court will hold that portions of the barrier built in occupied Palestinian territory are illegal. They are preparing the legal steps that usually precede an unwanted appearance before a Court. These include preliminary objections that the Court lacks power to act, or lacks jurisdiction or that the Court should exercise its discretion to decline to act in the matter.

It has been reported that Israeli leaders have decided to and may have already launched a campaign to discredit the Court as biased.

Headlines in the local press have asked, “Who Cares What the People in The Hague Think?” Essays have been published criticizing the Court for taking action on Israel while ignoring violations of human rights around the world. (The Court can only pass on cases presented by states or rule on questions brought to it by an authorized United Nations agency.)

After announcing that he had been consulted in Jerusalem on legal strategy, Professor Alan Dershowitz of Harvard Law School declared on his return here that friends of Israel should be “prepared to expose this court for what it is…. it would be insulting to kangaroos to call it a kangaroo court.” He added, “The case is a foregone conclusion, Israel is going to lose.”

When the institution that became the “World Court” was designed, the jurists (led by an American, Elihu Root) who planned it decided that its role should not be limited to acting on questions of International Law in “contentious” cases, where one state sues another. It thought useful, in addition to provide that it should act as a tribunal to which agencies of the United Nations could turn to advise them about points of international law relevant to their functions.

The Court was endowed with advisory jurisdiction to meet this need. When the International Court of Justice, was created in 1945 the United States agreed that it should continue the advisory power. The United States often supported resolutions asking the Court to act in its advisory capacity.

A study of the Court's advisory rulings, by a committee of the American Society of International Law, found “A review of the advisory opinions indicates that, with few exceptions, there has been a frequent and often striking coincidence of perception, approach and result between the United States and the Court on a number of issues.”

At the time of an earlier contentious case, an internationally respected august personage offered an exposition on the usefulness and the impartiality of the Court soon after the U.S. State Department harshly questioned the Court's impartiality.

That was the case that began after Senators Barry Goldwater and Daniel P. Moynihan characterized as a violation of international law the U.S. mining of the harbors of Nicaragua in support of the contra invaders. In April 1984, soon after the senators spoke, Nicaragua brought suit at the World Court, complaining of the mining and other aid to the contras by the U.S.

Embarrassed by the senatorial support for the case that could be made by Nicaragua, elements of the Reagan Administration began to “badmouth” the Court. Leading the charge was the U.S. Ambassador to the United Nations, Jeane Kirkpatrick. “The Court, quite frankly, is not what its name suggests, an international court of justice,” she said. “It's a semilegal, semijuridical, semipolitical body which nations sometimes obey and sometimes don't.” Following her lead members of the Reagan Administration circulated the charge that the Court was“politicized.”

The State Department charged after the U.S. had lost on the jurisdictional point, that the Court had been “determined to rule for Nicaragua ” and was “politicized.” Their statement said that the U.S. would not participate in the hearing of the merits of the case. It announced also that the consent to jurisdiction that President Truman gave on behalf of the U.S would be ended.

That was January 13, 1985. Soon afterward the often-traveling Pope John Paul II paid a visit to the Netherlands . While at The Hague he visited the International Court of Justice May 13, 1985. He addressed the Court at a formal sitting, attended by diplomats and royalty.

In his address he praised the Court's “impartiality and objectivity.” Its “members” he said “constitute an international center of distinguished legal activity.” He applauded “extension of the role of the international court…. for advisory opinions” and called for “wider acceptance of the so-called compulsory jurisdiction of the Court,” even though the U.S. had so recently announced it was withdrawing from it.

In the coming hearing on the Advisory case lead counsel for Israel will be Dr. Shabtai Rosenne, an Israeli diplomat and long time observer of the I.C.J. As student of the Court he has written more books about its procedures and its rulings than anyone.

In 1989, four years after the U.S. walked out of the Courthouse in Nicaragua 's case, Rosenne wrote in an Introduction to a new edition of one of his works on the Court:

[The Court has] rendered important services in the evolution of international law through the United Nations and in the peaceful settlement of disputes, more in the last decade than in the first thirty years of its existence….it has performed a major service to the international community as a whole because the need to bring international law into line with present-day requirements is real and urgent.

Some kangaroo!