Flawed Proceedings in the Hague

The International Court of Justice (ICJ) at the Hague will rule on the legality of Israel’s security barrier some day soon, and it will rule against Israel. Israel’s advocates will complain about the double standard of condemning Israel’s defensive measures when horrific violations of international law — including the Palestinian terror attacks that led Israel to build the barrier — go unremarked. What many fail to appreciate, however, is how a flaw in the ICJ’s procedural rules make such a double standard possible.

The problem lies in the ICJ’s “advisory opinion” procedure. An advisory opinion is a legal opinion that answers an abstract legal question. Many judicial systems (for example, the U.S. federal court system) will not allow judges to issue advisory opinions: the requirement of parties submitting a real, concrete dispute for resolution is considered an important reality check on judicial power. The ICJ’s charter, however, allows the United Nations and a variety of its agencies to pose questions to the ICJ and get a nonbinding advisory answer in response. Here, the U.N. General Assembly posed the question: “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?”

The main vice of the ICJ’s advisory opinion procedure is how it can be used selectively, based on nothing more than politics, as a tool against particular countries. There is no requirement that the opinion-making power of the ICJ must be applied evenly against all international actors. No one has asked for an advisory opinion about the “legal consequences of sending, or failing to stop, suicide bombers, to kill civilians in Israel.” And although most legal scholars agreed that the U.S.-led war against Iraq violated international law, no one sent the ICJ a question about the “legal consequences of a preemptive war against Iraq.” No one has sought an advisory opinion about Sudan’s ongoing displacement of millions of its own citizens and its murder of over 10,000 civilians. Instead, in one of those terrible ironies that U.N. attitudes towards Israel tend to foster, Sudan has submitted its own brief to the ICJ, solemnly arguing that Israel has violated its “obligations and responsibilities … under International Humanitarian Law.”

The advisory opinion procedure does not require the consent of the country that is the subject of the question. This contrasts markedly from most cases the ICJ has decided. In the so-called “contentious matters” — actual lawsuits between two countries — that make up the bulk of cases on the ICJ’s docket, there is a strict requirement that the parties must have consented to the court’s jurisdiction. This important procedural rule safeguards the court’s legitimacy by ensuring that the court is opining only when there is a real, legal reason for it do so. By contrast, the advisory opinion process can be invoked at any time in the discretion of the U.N. General Assembly. While the procedure has been used relatively rarely — in the 59 years of its existence, the ICJ has issued only 24 advisory opinions — the unique rules governing advisory opinions can be manipulated so that the court is being used for nakedly political goals. There is no procedural safeguard that prevents the U.N. General Assembly, a famously anti-Israel body, from submitting a question to the ICJ specifically designed to embarrass or discredit Israel.

The ICJ does have the power to reject a request for an advisory opinion where the request is posed for political reasons or will have negative effects on ongoing negotiations. Here, not only Israel, but the United States, the European Union, Russia, Australia and 14 other countries have asked the ICJ not to intervene in this dispute on these grounds. But it is difficult to believe that the ICJ will restrain itself from opining on the issue. It is hard for any court to resist the temptation to make legal history. This is especially true where, as one ICJ press release notes about the current proceedings against Israel, there is “exceptional interest in this case shown by the general public, civil society and the media worldwide.” In its entire history, the ICJ has never refused to respond to an advisory opinion request on the grounds that doing so would meddle in politics or interfere with negotiations.

The advisory opinion procedure can be used selectively in a way that makes it a weapon, not a legitimate way to institute a court proceeding. Israel’s adversaries are seeking an advisory opinion as part of a multipronged offensive against Israel, not as a true request for legal guidance. The ICJ should not be used as a pawn in a political conflict, but that is exactly what is happening. The biggest casualty of an opinion in this matter may be the long-term legitimacy of the ICJ itself.

Joseph M. Lipner is a Los Angeles attorney.