The basic premise of the Middle East peace process is erroneous. No map, plan, path, or accord is going to resolve the fundamental issues at stake in this region. Given the history of the past decade, there is no basis for believing that Israel and the Palestinian National Authority will be able to negotiate a mutually acceptable solution to the ongoing crisis. Bush's "road map" is dead, notwithstanding a meaningless endorsement of it by the Security Council. Oslo, likewise, is a corpse. The new Geneva Accord does not have the support of the Sharon government and is not likely to get it because Sharon and his cabinet see this effort as a rehash of past failures as well as a product of the Israeli Left. Further, since the United States will continue to veto any Security Council resolution establishing a peacekeeping force, Sharon's implicitly restored policy of zero tolerance of violence before any negotiations can resume can never be satisfied.
At the heart of the conflict lies a clash of fundamental rights: the right of the Palestinian people to self-determination, and the right of Israel to security within defined borders. Any attempt to nullify either Israel's legitimacy or the rights of the Palestinians to their own homeland will be doomed to failure. Because Arafat and Sharon are incapable of reaching an essentially historic compromise, it becomes incumbent on the international community to reach it for them.
Because the two parties are themselves unable to reach agreement, what is at stake now in the Middle East is not just the rights and obligations of Israel and the Palestinian National Authority. It is the future of the international community. Can it find a way to implement the rule of law in settling disputes? Or will the international community revert to the nineteenth-century principle of balance of power and the use of force to maintain world order? Must the entire world follow the Bush administration down the battle path?
The United Nations was founded in the aftermath of World War II, when it became clear that modem war in particular created an intolerable loss of human life and burden of human suffering. The Bush administration is relearning those lessons in the gory outcome of its attempted Pax Americana. In the last half-century, the United Nations has acted to promote, if not enforce, bloodless peace through the vehicle of its resolutions. Indeed, the history of UN resolutions on the Mideast is rich, as I will indicate below. Yet, as Stephen Zunes argued in TIKKUN (May/June 2003), the credibility of the United Nations has been dramatically undermined by its inability to find a solution to the Israeli-Palestinian crisis.
Where I disagree with Zunes is with regard to his view of the United Nations. The United Nations has not failed in promulgating potential solutions; it has failed by its unwillingness to enforce those resolutions that might lead to a solution. Since the World Court, in an advisory opinion, can not only state what the law is by relying on traditional sources of international law set out in its charter, it can also adopt provisional remedies. Thus, it has the capacity to fill this void. Consequently, sufficient international law exists as a basis for a judicial resolution of this crisis.
When parties to a dispute cannot resolve that dispute any other way, they go to court. And in the case of Israel and the Palestinians, there is a single remedy available. It is to get an advisory opinion by the International Court of Justice in the Hague that, under international law, can, in fact, be binding on the questions of law submitted to it. In what follows, I give the legislative history of the UN Resolutions concerning the Israel/Palestine conflict and show how by adopting a resolution calling on the World Court for an advisory opinion, the Court could implement them through a resolution of the crisis based on international law, including the adoption of provisional measures. …