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.

Israel Prepares for Fence Court Case

Israel claims that the International Court of Justice (ICJ) has no jurisdiction to rule on the West Bank security barrier, but at the same time, the government is preparing detailed legal, security and diplomatic arguments and an intensive public relations campaign.

The government also announced this week that it may make significant changes in the fence’s route, ahead of the Feb. 23 proceedings at The Hague.

In the run up to the hearing, two major decisions will be taken that could have a bearing on the case: Whether it’s better to dispatch an Israeli legal team to appear at the ICJ or to rely on a written affidavit, and whether to alter the fence’s route for humanitarian reasons.

Most top Israeli officials are against sending a legal team, on the grounds that it would imply the very recognition of the ICJ proceedings that Israel is at such pains to deny.

As for the route of the fence, there could be changes before the issue reaches The Hague. In an address Feb. 8 to the 40th Munich Conference on Security Policy, Giora Eiland, Israel’s new national security adviser — who has been given a free hand by Prime Minister Ariel Sharon to draft a new route for the fence — declared that Israel had not fully taken into account the way the barrier could disrupt Palestinian lives. Israel will do what it can — possibly even changing the fence’s route — to avoid causing unnecessary suffering, Eiland said.

Following Palestinian claims that the fence, which is being built in places on West Bank territory, is illegal, the U.N. General Assembly passed a resolution in December asking the ICJ for an "advisory opinion." The United Nations followed that up with a 600-page affidavit that, according to Dan Gillerman, Israel’s U.N. ambassador, ignores the basic reason for building the fence: Palestinian terrorism. Israel responded by questioning the competence of the court, the wisdom of a court action and the neutrality of one of the 15 judges, an Egyptian who previously has expressed anti-Israel views.

The legal-diplomatic brief, drafted by British-based international law expert Daniel Bethlehem, rejects the court’s authority, as well as "the propriety of the process." In a 131-page affidavit, Bethlehem maintains that the court has no right to rule on what is basically a political dispute, and that doing so will undermine political efforts to resolve the Israeli-Palestinian conflict.

A court ruling probably would drive the parties to adopt more radical positions and thus would make political negotiations less likely, the argument goes. It will undermine diplomatic initiatives like the internationally approved "road map" peace plan and cause more suffering and hardship, Israel will argue. In other words, Israel says, the court is an inappropriate forum for dealing with a political conflict.

This argument already has struck a receptive chord. Several dozen countries, including the United States, Russia, Canada, Australia, South Africa, all 15 European Union members and the 10 waiting to join have submitted affidavits rejecting the court’s jurisdiction, on the grounds that a hearing would do more harm than good.

To back up the legal-diplomatic argument, Israel also is preparing a detailed security brief. A team under Brig. Gen. Mike Herzog, the defense minister’s adjutant, is putting the finishing touches on a three-part document that describes the terrorist onslaught that led Israel to build the fence, explains the thinking behind the route and outlines its effectiveness at preventing terrorism.

Noting the number and nature of Palestinian suicide bombings, the document invokes Israel’s inherent right to self-defense according to Article 51 of the U.N. Charter. It also defines the Palestinian intifada as a "hostile confrontation" that entitles Israel to take forceful measures, such as building a fence in disputed or occupied territory.

Israelis’ right to life, the document argues, takes precedence over Palestinians’ right to freedom of movement.

In his Munich address, Eiland explained that Israel decided to build the fence in the spring of 2002, after 135 Israelis were killed in 17 suicide attacks in a single month. He underlined how effective it already has proven: In the sector where the fence is complete, only three Israelis were killed last year, compared to 58 the year before.

Even if Israel decides not to dispatch legal experts to appear in court, it will send a public relations team to The Hague. There also will be an exhibit recalling the June 2001 bombing of Tel Aviv’s Dolphinarium disco, in which 23 young Israelis were killed, as well as the gutted hulk of a bombed Jerusalem bus.

The main thrust of the Palestinian case is that the fence is not being built exclusively on Israel’s own territory, and that it causes humanitarian problems for hundreds of thousands of Palestinians.

On the territorial issue, Israel has developed a two-pronged legal argument. First, Israel argues, the U.N.’s use of the term "occupied Palestinian territory" is questionable, because the West Bank never legally belonged to the Palestinians. Rather, Israel argues, the land should be considered "disputed territory," in which Israel, one of the disputing parties, has rights. Moreover, Israeli officials say, even if the term "occupied territory" is granted, an occupier facing armed hostilities has the right to take defensive measures.

On the humanitarian issue, Israel has another two-pronged claim. The argument in principle is that saving human life takes precedence over nonlethal hardship. But Israel now adds that it intends to do all it can to relieve Palestinian suffering, even if that means building the fence closer to the pre-1967 boundary between Israel and the West Bank, known as the Green Line.

Eiland is working on a new route that will take the fence closer to the Green Line and not snake around some Palestinian villages, cutting them off from both Israel and the West Bank.

The problem of the "ringed villages" is most acute in Jerusalem. Human rights activists contend that it is not only inhumane but self-defeating. The misery it causes will spawn even more suicide bombers, they say.

Eiland and others in Sharon’s circle now say that the rings will not be built, alleviating humanitarian problems and reducing the length of the fence by as much as 125 miles.

The bottom line is that for all its detailed preparations, Israel sees the ICJ more as a public relations battle than a legal one. If the court decides to proceed with the case and ultimately deems the fence illegal, Israel almost certainly would ignore the nonbinding advisory opinion and would go on building it.

The detailed preparations and presentations, then, are mainly intended to build understanding for Israel in the international community if and when the court rules against the fence.