Why the World Court Decision on the Israeli Fence Is too Important to be Forgotten
First question voted on was whether to ask the International Court of Justice (commonly called the World Court) to render an Advisory Opinion on whether it was legal for Israel to construct a barrier (a wall or fence) outside of Israel's borders, claimed to be to protect against cross-border incursions by alleged"terrorists."
Second question voted on --the question of legality having been argued at the Court and answered in an Advisory Opinion to the effect (by a vote of 14:1) that the construction violated International Law--was whether the Assembly approved and adopted the opinion and a request of compliance with the rule of law found by the Court to apply.
Under its statute, agreed upon by the San Francisco founding U.N. Conference, the Court not only handles what are called" contentious" cases, where one (or more) nations sue one or more others. It is also trusted with and empowered by its founders to give Advisory opinions, after hearing all nations that might be affected by the rule announced. Any organ of the UN may ask legal advice, and international agencies also grant the privilege by the Charter. Any state member of the U N may appear at the Court to submit its views, by brief or oral presentation or both.
Israel is no stranger to the Court and is familiar with the Advisory type of case. She has participated in or been concerned with several such cases over the years and has seemed satisfied with the manner in which the Court handled them, and the result. Especially gratifying was a 1980 case between the W.H.O. and Egypt. The problem was caused by the hostility to Egypt of twenty Arab or Muslim states. They sought to"punish" Egypt for making a separate peace with Israel; the weapon was to demand removal of the Mediterranean office of the W.H.O. from Cairo to Amman in Jordan. The Court heard the parties and ruled, acceptably to Egypt and hence to Israel that to make the change required notice and negotiations. The only dissenter to this ruling was the judge of Soviet nationality.
The Advisory ruling now in the news was the Court's July 9 answer to the Assembly's December question: Answer: the fence is illegal and so are the settlements themselves. Comparison of the two Assembly votes shows:
(12/03) To submit the question to the Court: 90 for, 8 against, 78 Abstain
(7/04) To Approve/accept the Court's Answer: 150 for, 6 against, 10 Abstain
This disparity does not mean that the members of the Assembly changed their minds. To abstain from putting the question meant, as many expressly told the Court in their submissions, they preferred that the Court not act at this time.
Not only did that not mean that they thought Israel's actions legal; indeed some of them made clear before or at the hearing that they viewed the disputed construction to be definitely illegal. Consistent with this is the report from the Courthouse from one seasoned Hague observer, Dr. Peter H. F. Bekker, who wrote in an essay published as an"Insight" by the American Society of International Law:"Forty four UN member states (including Israel)… submitted written statements….While some participants questioned the propriety of the ICJ ruling on the matter, none voiced support for the legality of the wall."
America's usual allies have joined with the rest of the community of nations to say in no uncertain terms that they accept the Court's view of the legal question. Israel and the United States should consider seriously the grave implications that must be drawn from the two separate Assembly votes and the Court's 14-1 ruling.
Can we decently disregard the mandate of the Law of Nations in the face of the Court's confirmation of what everybody knew all along?
The consequences are fraught with danger to the future co-existence of the members of the community of nations, whose mutual respect for the Rule of Law must not be undermined.
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