Much Ado about International Court of Justice Hearing on Israel's Apartheid Wall

Article excerpt

On Jan. 30, over 40 countries, including the U.S. and Israel, submitted written briefs to the International Court of justice (ICJ) in The Hague on the question put to it by the United Nations General Assembly: "What are the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant security Council and General Assembly resolutions?"

Oral pleadings will take place Feb. 23.

In almost every media report about the court case, Israeli and American spin doctors have managed to insert that the Court's findings are "not binding." That, however, is not the view of most legal experts internationally. True, the Court cannot enforce its judgments-but its findings are an irrefutably authoritative statement of international law. It is ICJ judgments that paved the way for detaching Namibia from apartheid South Africa, and which have been the last bastion against Moroccan annexation of Western Sahara.

And, should Israel persist in its course of action following an unfavorable verdict, it will not be able to plead, as it has done for decades, its own idiosyncratic reading of the law, Instead it will be a clear international scofflaw. This may come as no surprise to Washington Report readers, of course, but will undoubtedly wound the tender sensibilities of many Israel-firsters.

Despite a fairly constant stream of negative statements about the United Nations from Israel and its supporters, the Jewish state does in fact have an existential problem in undermining international law and the United Nations. Unless its attorneys can call Moses and the Lord Almighty into the witness box, Israel's legal statehood depends on a series of decisions made firstly by the League of Nations, and culminating in the United Nations partition resolution of 1947.

For years, however, Israel has benefited from creative ambiguity about the status of its territory and boundaries. In the years prior to 1967, it claimed the "Green Line" as its international boundary. Increasingly the EU and the U.S. have regarded it as such-as did the Israelis before they occupied the West Bank. But since then the Israelis have denied the significance of the Green Line, saying its frontier must be settled in negotiations.

In fact, Israel's only internationally accepted boundary is the partition line of 1947. While this may seem a far-fetched legal fiction, in fact, except for a few heavily bribed governments, most nations have not placed their embassies to Israel in Jerusalem. Their refusal to do so is precisely because, under Resolution 181 that partitioned mandatory Palestine, the city is a "corpus separatum" under United Nations control, and not accepted as Israeli territory.

Despite their public derision, the Israelis are under no illusions about the significance of the case. They have asked the U.S. State Department to hold off publication of its annual country-by-country Human Rights Report until after the World Court delivers its verdict. Prime Minister Ariel Sharon well knows that the State Department will condemn the wall and its consequences for the Palestinians.

The Israeli government also is racing through a hearing on the Wall in the Israeli Supreme Court, in order to get a judgment it can wave about before the ICJ. Reportedly, however, the Israeli attorney general himself is worried that he may not have a convincing enough case even for the relatively tame domestic court. In an attempt to head off criticism, Sharon is dangling carrots such as an adjustment of the wall's route.

Despite the attorney general's worries, the official Israeli line is that the wall is legitimate for self-defense. Since almost no other country in the world accepts that point of view, there should be no rational objection to this moot point being cleared up by the ICJ, the most authoritative body in the field of international law. …