ISRAEL:THE WALL

Bert Westbrook replies to Christopher Jones' posting on the condemnation by the International Court of Justice of Israel´'s building the notorious wall in Palestine territory: "First, this is not a "resolution condemning the action," but an ICJ legal decision. This is a legal, not political, statement. (This is a philosophically difficult, but institutionally presumed, distinction.) Immediately translating it into an explicitly political idiom misses much of the significance of the case, which is that it is a case, not just another GA resolution.

Second, Zionism is NOT the right way to read this. First, the U.S. traditionally has a judge on the court. Currently, it is Thomas Buergenthal, who has long been a very widely respected and tireless judge, advocate, and human rights scholar. He's also a very good lawyer. (I doubt he knows who I am, but I've met him a number of times over the years. Indeed, he first began teaching at my school, Buffalo). As a child, Buergenthal survived Auschwitz, but his dissenting opinion does not therefore represent Zionist domination of American politics. Even a cursory reading of his declaration [http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm] indicates that he thinks much, perhaps all, of the wall is illegal.

Buergenthal's immediate point is that the factual record is unbalanced -- security concerns are legitimate under the Charter, and the Court was not in a position (due to the posture of the case, see below) to evaluate the security concerns and hence the legality of certain actions. Buergenthal thus raises classic problems of institutional competence. Could a court ever be in a position to evaluate defensive measures? The ICJ, the U.S. Supreme Court, and any indeed any court that would involve itself in such questions must ask itself: at what point in a political, especially military, situation can judicial process occur? The ICJ has some rather bitter experience with this, notably by being ignored in the Western Sahara Case, in which the Court declared Morocco's actions illegal. On the other hand, sometimes it makes more sense to speak -- even at the cost of being ignored -- than to remain silent. As Buergenthal also knows, and has done.

The Court ducks the immediate issue -- failure to consider self defense as a justification -- by simply declaring that Article 51 of the U.N. Charter (providing that a State has the right to defend itself) doesn't apply (para 139 of the Opinion). This is convenient for the Court -- the jurisprudence of Article 51 is so capacious that responsible scholars (sometimes including me) are arguing it means almost anything, and so nothing -- but unconvincing both textually and in light of the fact that Israel does suffer terrorist attacks, and is defending itself (bracketing, for the moment, questions of proportionality, means, and the like). Rephrased structurally, here again we see the tension between the UN system, built on certain assumptions about states and the nature of international politics, and modern warfare, which is conducted along different lines.

However, had the Court heard the case and done what Buergenthal appears to be urging, it would find itself in the position of making security policy in Palestine, something which it is simply not capable, intellectually or practically, of doing. Thus, in an effort to keep the issue "legal," and hence be able to render its advisory opinion, the Court made some rather sweeping and easily criticized generalizations about the situation. Most notably, the Court decides this as an issue of human rights law and certain universally applicable ("erge omnes") obligations which, the Court maintains by 14-1, Israel has violated. Ironically, Buergenthal's scholarship and renown and ultimately judgeship are based on his years of arguing for such universal human rights.

An alternative, which Buergenthal would have preferred, would be for the Court to recognize its limitations and refuse to give the General Assembly its opinion. There were available grounds for doing this, involving the relationship among the Court, the Security Council, and the General Assembly -- but denying the GA's request would raise constitutional/institutional issues quite apart from the merits of the case, probably by conceding more power to the Security Council, which would be problematic. More importantly for the merits and as already suggested, it is inappropriate for Courts to be too silent, even if they cannot always provide a practical remedy.

There is an old adage that hard cases make bad law. This may be one of those situations. And it bears remembering that the U.S. Constitution requires a "case or controversy," that is, judicial opinions be rendered in response to a legal dispute between parties (what the ICJ calls "contentious cases"). The statute of the ICJ, however, does not require a case or controversy, but allows for "advisory opinions." So, in the present case, there are no parties as such. The General Assembly has simply asked the ICJ "what is the law" -- and that is an invitation to speculation, overreaching . . . and loss of authority. Which makes Buergenthal justifiably anxious.

A separate opinion by Judge Rosalyn Higgings considers these questions of judicial discretion in some detail.

Both the Court and the General Assembly used the term "wall." From the press release: Before addressing the legal consequences of the construction of the wall (the term which the General Assembly has chosen to use and which is also used in the Opinion, since the other expressions sometimes employed are no more accurate if understood in the physical sense), the Court considers whether or not the construction of the wall is contrary to international law. WAISers interested in such things may sign up to receive ICJ press releases -- and directions to full documentation -- at the Court's site, www.icj-cij.org".

RH: The International Court of Justice has 15 members, all distinguished jurists. The fact that apart from Buergenthal the decision was unanimous is proof that he was very much in the minority, and he is viewed as an ex parte witness who should have recused himself. For better or far worse, what Christopher Jones wrote represents world opinion. As for the Western Sahara, why should the decision of the Court be described as a bitter experience? Most observers think it was right.