In response to the request of the U.N. Special General Assembly, Secretary-General Kofi Annan reported back on Sharon's Wall. To the astonishment of nobody but Likud supporters in Israel and Washington, he found it was a bad thing. The Israelis had not stopped building the wall, despite the previous resolution, Annan pointed out, and it already was causing harm to thousands of Palestinians in its wake and would cause even more if continued.
Tired of being told that the General Assembly had no authority-but noticing how upset Israel, its American sponsor and, increasingly, the British are when the body condemns Israel-the Palestinians' lawyers had come back with a power that the U.N. Charter does give the Assembly: the ability to refer issues to the International Court of Justice (ICJ) in The Hague.
The Arab group moved a resolution calling on the Court to rule on "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?"
But the vote, 90 to 8 with 74 abstentions, showed the insidious effect of British pandering to the U.S. and Israel on the European Union members, who abstained because, as the British alleged, this would "politicize" the Court. The ICJ, however-which spends its time adjudicating such presumably non-political issues as boundaries between states, or the allegation that Yugoslavia was guilty of genocide, or the American mining of Nicaraguan harbors-seems happy to go ahead.
The most specious argument against the resolution was that it should not go to the Court because the General Assembly already had determined that Israel's building the wall was in breach of the Geneva Convention. Since the same critics usually insist that the General Assembly resolutions are not binding, however, surely it was not inappropriate to go to the body entrusted by the U.N. with interpreting international law.
Of course, the British also must explain-since they do accept that the Geneva Convention applies, and is being broken-why they abstained when the U.S. vetoed the resolution on the Wall in the Security Council. Had the resolution gone through then, there would have been no need for a reference to The Hague. But we must remember that we are talking expedient politics here, not logic-let alone law.
Predictably, Israel claimed the 74 abstentions as votes in its support. This was not what the abstainers were saying, however, since most of them said Israel should stop. Indeed it was the European Union which, only a month before, had sponsored the resolution calling upon Israel to stop the construction!
By its normal standards the Court has moved extremely quickly, setting Jan. 30 as the deadline for parties to submit written statements to the Court. Also, it added, "taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion, Palestine may also submit to the Court a written statement on the question within the above time-limit."
The ICJ agreed as well to allow the Palestine Mission to appear for the oral hearings, which it set for Feb. 23, 2004.
The issue is exposing the contradictory impulses of the Israeli establishment. On the one hand, it expresses total contempt for international law and organizations. On the other, it shows a deep need for vindication of its own perceived legality. This is not surprising, considering not only that the state owes its very existence to acts of the League of Nations and the United Nations, but also the importance of law in Jewish tradition. …