August 2004

Courting Trouble
Problems with the ICJ decision on Israel's security fence

By David Knoll

The International Court of Justice in the Hague has issued a ruling which includes a double standard on Palestinian and Israeli rights and responsibilities

Both the International Court of Justice in The Hague (ICJ) and the Israeli Supreme Court have decided that while Israel has the right to defend herself against the onslaught of Palestinian terror by building a security barrier that is part fence-part wall, the route of that barrier is subject to legal regulation.

The Israeli Supreme Court ruled on June 30 that certain sections of the security barrier posed an undue hardship on Palestinians and had to be re-routed. The International Court of Justice in The Hague ruled on 9 July 2004 that so much of the barrier as is built on occupied territory was unlawful. Twenty democratic nations asked the ICJ to decline to hear the case. The Australian Government in particular presciently submitted to the ICJ that the very giving of an advisory opinion - as the ICJ now has done - would have a negative effect on the prospects for peace.

One must remember that Israel’s record on keeping its peace agreements, even before the Oslo Accords, was exemplary. Israel withdrew from the Sinai – and dismantled Jewish settlements – when the peace treaty was signed with Egypt. 

And pursuant to United Nations Security Council Resolution 242, Israel is not required to withdraw from any other territory until it can be assured that ordinary Israeli civilians can go about their lives free from threats or acts of force, including the homicide bombings that the security barrier had, up to July 17, successfully protected most Israeli civilians from for some 3 months.

The ICJ decision placed much emphasis on the right of the Palestinians to self-determination, and decided that Israel was required to accord rights under international treaties to the Palestinians, even while their claim to statehood remained nascent. However, the ICJ also decided that Israel could not rely on the doctrine of self-defence to justify the security barrier because the threats of force that the security barrier was designed to counteract were not "imputable to a foreign State". The right of self-defence, says the majority of the ICJ, is limited to self-defence in the case of armed attack "by one state against another state". As Dr Leanne Piggott pointed out in The Australian (July 12), this conclusion has no support in the UN Charter, and has the effect of denying nations the right to defend themselves against al-Qaeda. 

There is a patent double standard here. The Palestinians are accorded rights without a responsibility to stop the terror that emanates from within their midst, and Israel is accorded responsibility for Palestinian self-determination, without the right to defend her civilians against suicide/homicide bombings.

Judge Rosalyn Higgins, the British Judge who was not prepared to uphold the route of the security barrier, expressly concluded that the majority was wrong to decide that self-defence is available only when an armed attack is made by a State. The Judge said in her book on Problems and the Process of International Law, "Common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself".

While agreeing in the majority’s answer to the question placed before the Court, Judge Higgins criticised the framing of the question. She ruled that the very formulation of the question precluded consideration of the historical and legal context. Judge Higgins however supported the decision in terms which would have found favour with the Israeli Supreme Court:

"While the wall does seem to have resulted in a diminution of attacks on Israeli civilians, the necessity and proportionality for the particular route selected, with its attendant hardships for Palestinians uninvolved in these attacks, has not been explained."

On the self-defence issue, the dissenting declaration of Judge Thomas Buergenthal, the American Judge, is even more powerful. He reminded his judicial colleagues that: "the Security Council has made clear that "international terrorism constitutes a threat to international peace and security" while "reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001) [and Security Council resolution 1373 (2001)]."

Judge Buergenthal ruled that any judgment about whether the security barrier would be a legitimate exercise of the right of self-defence required that "all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case."

And as Judge Buergenthal correctly pointed out: "The Court fails to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security."

But one should not be surprised. Much as the United Nations has ceased to be a credible participant in resolving the conflict between Jew and Arab in the Middle East, so too its judicial organ, the ICJ has proven itself incapable of dealing fairly with that conflict.

The ICJ also accepted the proposition that the security barrier was wrongly located on Palestinian territory. The ICJ was asked by the General Assembly to assume that Israel was building a wall on Palestinian land and then asked to say whether - based on that assumption - the wall was illegal. In our own legal system, putting up a building on someone else’s land without their permission is obviously wrong. So why ask such a rhetorical question?

The answer is politically obvious. It creates yet another stick to bash Israel with. Legally, however, the framing of the question meant that the Court was asked to rule on the actions of one party to a conflict without reference to the actions of the other party - hardly a fair or reasonable judicial process. In this context, the Court ruled as follows: "The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power."

The ICJ, when previously called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded "to appraise the relative strength of the opposing claims to sovereignty" The ICJ used to accept that title to territory is based on a claim not of absolute but only of relative validity. Applying that principle, no other state has a legal claim equal to that of Israel to these territories under the unconditional cease-fire agreement of 1967.

Thus, Israel’s relative superiority of title would need to be balanced with the claims of the Palestinians. The ICJ did none of that, and did not even refer to its own decision in the Minquires and Echrehos case. Moreover while deciding that only actions by states could give rise to a right of self-defence, it decided that non-states (in this case, the same non-state) had territorial rights just like any sovereign state. The Court went so far as to simply assume that all territory acquired by Israel could not be Israeli territory, and declared that it saw no need to inquire into the "precise prior status of those territories".

As the late Julius Stone pointed out in his treatise, Israel and Palestine: Assault on the Law of Nations, (Johns Hopkins Univ. Press 1981): "Israel’s territorial rights after 1967 are best seen by contrasting them with Jordan’s lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948. Jordan invaded in 1948 illegally, and so Jordan never acquired any right to stay and govern the West Bank. Jordan attacked Israel across the 1967 border during the Six Day War, and Israel took the West Bank in the course of repelling that attack. 

International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self-defence in 1967, the entry on the territory was lawful. The ICJ Advisory Opinion simply ignored this history and these basic legal propositions.

Similarly the Court accepted, without any analysis, the undoubtedly incorrect proposition that encouraging voluntary settlement by Jews in the occupied territories was a deportation of people into those territories contrary to the final paragraph (6) of Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows. "The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies."

Article 49 was directed against the heinous practice of the Nazi regime of forcibly transporting populations of which it wished to rid itself into or out of occupied territories for the purpose of liquidating them, or to provide slave labour or for other inhumane purposes. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding their Nazi occupant’s metropolitan territory of Jews - of making it, in Nazi terms, judenrein. (That the Geneva Conventions apply is however an unexceptional conclusion. See: Adam Roberts, "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967", 84 Am.J. Int’l L. 44 (1990))

Ironically, while the Palestinians demand a right for any Palestinian Arab to live in the Jewish State, they want to exclude Jews from the right to live in the new Palestinian State. They want a Palestine that is judenrein. The ICJ has perhaps unwittingly - but more likely very recklessly - utilised Article 49 try to enforce the very racist exclusion that Article 49 was designed to prevent.

That the ICJ has done damage to the cause of peace is easily tested from the reaction of various foreign policy doves. For example, Israel’s leftist daily Haaretz commented on 11 July, "It is difficult to accept the omission of Palestinian terrorism by the court and the murky reference to "violence" against Israelis, whose perpetrators appear to be anonymous. In its fervor to present the Palestinians as innocent victims of the occupation the court ignores the suicide attacks and other terrorist activities. Herein lies the main difference between the decision at The Hague and the ruling of the High Court of Justice on the fence. The latter recognized the security necessity of the fence and accepted the government’s approach that its construction was meant to protect the citizens and not annex territory."

And one of the architects of the Oslo Accords, now Opposition leader Shimon Peres, said that the ICJ "ignored the fact that the right to stay alive is a basic human right."

In ignoring the human rights of Israeli civilians the ICJ has not advanced the cause of peace, and has taken the vital agenda of human rights backwards.