January 2004
The General Assembly of the United Nations has asked the International Court of Justice for an advisory opinion on "the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory". The question asked by the General Assembly is this:
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?
The power of the International Court of Justice to give an advisory opinion is derived from Article 96, paragraph 1, of the Charter of the United Nations and from Article 65 of the Statute of the International Court of Justice. Both provisions require that the question forming the subject matter of the request be a "legal question". It is my view that the question submitted to the Court by the General Assembly is a political question, and not a legal question, and that, accordingly, the Court is not empowered to answer it.
Superficially, the question looks legal. In form it asks: "What are the legal consequences arising from a certain state of events, considering the rules and principles of international law?" However, when one looks at the description of the events about which a legal opinion is asked, it is apparent that there is something else going on here.
The question as posed is hardly neutral. It adopts terminology that Israel rejects. It calls a fence a "wall". It refers to Israel as "the occupying Power". It refers to the West Bank as "Occupied Palestinian Territory". It defines this "Occupied Palestinian Territory" to include East Jerusalem.
The notion that the fence is a "wall" is a contested issue of fact. The notion that Israel is "an occupying Power", that the West Bank is "Occupied Palestinian Territory", that this "Occupied Palestinian Territory", insofar as it exists, includes East Jerusalem, are all contested issues of international law.
This is not a request for an opinion. It is a request for endorsement of an opinion already formed. It is an abuse of the power to request an opinion in this form. It is a bad faith exercise of the power to request a legal opinion that is not truly a question but rather the statement of a political opinion with a request for an endorsement.
Given the question that is asked, is it open to the Court to hold that there is no wall, but only a fence, that Israel is not "the occupying Power", that the West Bank is not "Occupied Palestinian Territory", that, even if there is such a thing as "Occupied Palestinian Territory", it does not include East Jerusalem? If these holdings are not open to the Court, then the Court is being asked to assume certain propositions of international law that may be wrong. The Court must reject any invitation to assume legal positions that may be incorrect.
If it is open to the Court to examine the legal assumptions on which the question is based, and the Court answers all of these questions the way Israel would propose, then there is no question left to answer. The question exists only because it is posed based on certain assumptions of international law which may or may not be true.
The Court can answer the question posed only by answering these questions:
"Is the construction in question a wall or a fence?"
"Is Israel an occupying Power?"
"Is the West Bank occupied Palestinian territory?"
"If so, does this occupied Palestinian territory include East Jerusalem?"
However, the General Assembly has not asked the International Court of Justice to answer these questions. One cannot assume, from the question asked, that the General Assembly would want the International Court of Justice to answer these questions. Given that the question asked cannot be answered without answering these other questions, and given also that the General Assembly has not asked the Court to answer these other questions, either expressly or by implication, the question asked becomes unanswerable.
The Court must insist that any request for an advisory opinion not itself answer contested questions of international law. Questions posed to the Court that attempt to answer questions of international law are not truly requests for advisory legal opinions but just statements of political opinion for which the General Assembly is seeking outside support. However, the Court does not exist to put a legal rubber stamp on political opinions of the General Assembly. The Court would undermine its own existence if it consented to being used for that purpose.
A second legal constraint imposed on the power of the General Assembly to ask advisory questions has to do with subject matter. Superficially, it would seem that the General Assembly can ask an advisory opinion about absolutely anything. Article 10 of the Charter of the United Nations has conferred on the General Assembly a competence relating to any question or matter within the scope of the Charter. Article 11 of the Charter gives the General Assembly a competence to consider the general principles in the maintenance of international peace and security. Article 13 of the Charter provides that the General Assembly shall initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification.
Nonetheless, this general power is constrained by the obligation to avoid circumventing the powers given exclusively to the Security Council and denied to the General Assembly. In particular, the Security Council has exclusive powers to decide what measures are to be employed to maintain or restore international peace and security [Chapter VII, Charter of the United Nation].
The General Assembly, either on its own or in combination with the International Court of Justice, cannot decide what measures are to be employed to maintain or restore international peace and security. Any attempt to do so would be a perversion of the United Nations system. Yet, that is exactly what this advisory opinion seeks to do -- to circumvent the exclusive powers of the Security Council to decide what measures are to be employed to maintain or restore international peace and security in the Middle East.
In order to consider this issue, one has to consider what the answer might be to the question that was asked. The South West Africa advisory opinion of 1971 is a guide. In the 1971 South West Africa advisory opinion, the Court was asked "What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276(1970)?" In form, the question asked there and here is similar, a question of legal consequences.
The answers the Court gave there were that:
1) The continued presence of South Africa in Namibia being illegal, South Africa is under an obligation to withdraw its administration.
2) State Members of the United Nations are under an obligation to recognize this illegality and to refrain from any acts or dealing with South Africa implying recognition of the legality of, or lending support or assistance to the South African presence in Namibia.
There is little doubt that the Palestinian Authority and anti-Zionist States would like a similar answer.
One would expect the Palestinian Authority and anti-Zionist States to ask the Court to give these answers:
1) The continued existence of the wall in Occupied Palestine including East Jerusalem being illegal, Israel is under an obligation to demolish the wall.
2) State Members of the United Nations are under an obligation to recognize this illegality and to refrain from any acts or dealing with Israel implying recognition of the legality of, or lending support or assistance to the Israeli construction or maintenance of the wall.
One can see that this answer is a determination very much like what the Security Council might make under Chapter VII of the United Nations Charter. It is an answer only the Security Council can give. It would corrupt and defy the UN system for the Court to be able to say, on the request of the General Assembly alone, that States are under an obligation to do anything on matters of peace and security, without any involvement whatsoever of the Security Council.
Put another way, the question asked by the General Assembly can be answered, but only in a procedural way. The procedural legal consequence arising from the construction of the wall/fence and the General Assembly's request is that the substantive legal consequences must be decided by the Security Council. The Court could provide substantive advice on legal consequences to the Security Council, if requested to do so, but otherwise can say nothing.
Article 11(2) of the Charter provides that any question relating to the maintenance of international peace and security on which action is necessary shall be referred by the General Assembly to the Security Council. The request to the Court for an advisory opinion is a form of action. But, in this case, the General Assembly did not refer the request for an advisory opinion to the Security Council. So, the request is invalid.
In the South West Africa case, though the request for an advisory opinion was made by the General Assembly, it was a request for an opinion on the legal consequences of a Security Council resolution. That resolution had determined the continued presence of South Africa in Namibia to be illegal. The resolution was passed consequent on a referral by the General Assembly under Article 11(2) of the United Nations Charter. The General Assembly made that referral because it lacked the necessary powers to ensure the withdrawal of South Africa from Namibia.
In this case, there is no comparable Security Council resolution. The only Security Council resolution passed subsequent to the commencement of the construction of the fence/wall to which the present General Assembly request refers is resolution 1515 of November 19, 2003. That resolution simply endorses the Roadmap and calls on all parties to fulfil their obligations under it. There is no mention of the fence/wall. The West Bank is not called "Occupied Palestinian Territory". Israel is not called "an occupying Power". There is here, unlike in the South West Africa case, no obvious connection between what the General Assembly is doing through its advisory opinion request resolution, and what the Security Council has done.
In the South West Africa case, the Court reasoned that the precise determination of acts permitted and forbidden by member States consequent on the illegality of South Africa's continued presence in Namibia is a matter that lies within the competence of the appropriate organs of the United Nations acting within their authority under the Charter. That is easy enough to say when both the General Assembly and the Security Council had wanted South Africa to withdraw from Namibia. Each had made the necessary political decision. All that was left was enforcement.
Here, there is no comparable decision by the Security Council. There is little doubt that enforcement of a decision of the Court on matters of international peace and security rests with the Security Council. But, when the Security Council has not asked the question, has no apparent interest in the answer, and has made no prior determination of illegality or opposition to the construction of the fence/wall, any determination by the Court becomes little more than just empty air. It is an affront to the Security Council and its exclusive powers over matters of international peace and security.
The permissive character of Article 65 of the Statute of the Court on advisory opinions gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the request for an advisory opinion. Even if the question asked in the request for an advisory opinion is a legal one that the Court is competent to answer, it may nonetheless decline to do so.
In this case, there are compelling reasons why this question should not be answered. The previous arguments about the constraints on the power of the General Assembly to request the advisory opinion in this case, even if rejected on legal grounds, provide compelling reasons why the question should not be answered on discretionary grounds.
There are other compelling arguments besides. The Charter of the United Nations calls on all States to pursue in good faith the peaceful settlement of disputes. The dispute between Israel and her neighbours, including the Palestinian Authority about which the question asked by the General Assembly forms part, is best resolved by negotiations.
Legal wrangling over rights and wrongs in the International Court of Justice does nothing to move the parties towards negotiations. By casting the issues as matters of right and wrong, each side becomes entrenched in its own position. Attitudes become hardened, envenomed. The litigation moves the parties away from a negotiated settlement to their disputes. The embittering of the dispute between the parties likely to result from the Court's considering and answering the question is a compelling reason why the question should not be answered.
The Palestinian Authority is not a State Party to the Statute of the International Court of Justice. Israel, which is a State party to the Statute of the Court by virtue of being a member of the United Nations, has opposed the request for an advisory opinion. Israel has not accepted the compulsory jurisdiction of the Court. The question asks the Court to give an opinion on a matter in dispute between the Palestinian Authority and Israel, which legally could not be brought before the Court under its compulsory jurisdiction.
In 1923, in the Eastern Carelia case, the Permanent Court of International Justice declined to render an advisory opinion requested by the League of Nations. The request concerned a dispute between Finland and Russia where Russia was not a member of the League of Nations. The Court applied the principle that no State can, without its consent, be compelled to submit its disputes with other States to any kind of judgment or opinion by the Court.
In the 1950 advisory opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, the International Court of Justice agreed to comply with the request of the General Assembly for an advisory opinion despite the opposition of all three concerned States - Bulgaria, Hungary and Romania. In doing so, the Court noted that the Court was considering only the applicability of a procedure for the settlement of disputes and was not pronouncing on the merits of these disputes. The implication of this reasoning is that the Court may well have refused to answer the request for an advisory opinion if it had been asked to pronounce on the merits of a dispute amongst the States concerned.
However, here there is no doubt that the Court is being asked to pronounce on the merits of a dispute between Israel, the Palestinian Authority and other States. The reasoning in the 1950 opinion militates against answering the question in this case.
The International Court of Justice in the 1975 Western Sahara case also agreed to comply with a request of the General Assembly for an advisory opinion, this time on the legal status of the Western Sahara, despite the objections of Spain. At the time there was a dispute between Spain and Morocco on the attribution of territorial sovereignty of that territory.
In agreeing to comply with the request, the Court observed that the purpose of the reference was to assist the General Assembly in its own functions of decolonization, not to bring before the Court a dispute between States, and that the legal position of Spain could not be compromised by the Court's answer to the questions submitted. The Court, it is apparent, would have declined to answer the question asked if the answer could have compromised the legal position of Spain.
That is certainly not true with this reference. The legal position of Israel could be compromised by the answer the Court gives to the question submitted. So, the question should not be answered.
One of the many anti-Zionist slurs against Israel is that Israel is, like South Africa before it, an apartheid state. Anti-Zionists have attempted to mimic the anti-apartheid campaign in a variety of ways. It is no coincidence that the current request for an advisory opinion copies so closely a question directed against apartheid South Africa in the South West Africa case.
At the time the South West Africa advisory opinion request was before the Court, South Africa argued that the Court should decline to answer the request for an advisory opinion on the basis that the question was contentious, relating to an existing dispute between South Africa and other States. The Court held that the fact that, the Court might have to pronounce on legal questions upon which divergent views exist between South Africa and other States in order to give its answer, did not convert the case into a dispute between States.
The Palestinian Authority is not a State, but for the purposes of the present advisory opinion it is being treated like one. The Court, by order dated December 19, 2003, allowed the Palestinian Authority both to submit a written statement and to take part in the oral hearing on the same terms as other States.
No entity representing Namibia participated in the South West Africa case. It would be inconsistent with the order the Court has already made in that case, as well as completely out of touch with reality, for the Court to agree to answer the question asked on the basis that the dispute that Israel has with the Palestinian Authority over the legality of the fence is merely an abstract question of international law on which there are divergent views amongst States.
As well, in the South West Africa case, the formal dispute was between the United Nations and South Africa and not amongst States. The League of Nations had mandated South Africa to administer South West Africa. The United Nations General Assembly terminated this mandate. The Security Council adopted resolutions declaring the continued presence of South Africa in Namibia to be illegal. The Court was asked to determine the legal consequences of the termination of the mandate. In the course of answering the question, the Court held that the United Nations was the successor to the League of Nations for the purpose of the mandate.
In this case, unlike the South West Africa case, the dispute rests amongst member States and the Palestinian Authority, and not between a United Nations organ and the State of Israel. It may well be that the Court can and should give advisory opinions in the context of legal disputes between States and the United Nations. However, that does mean that the Court, either can or should, give advisory opinions on disputes amongst States or between a State and a non-State entity.
In this case, as well, unlike the South West Africa case, there is no referral of the underlying issue by the General Assembly to the Security Council. There is no Security Council endorsement of an underlying position of the General Assembly. It may well be that the Court can and should give an advisory opinion on a matter of international peace and security on the request of the General Assembly where the Security Council approves of the request or approves of the underlying political position on which the request is based. But, the matter is different where the Security Council says nothing, either on the request or the underlying political position on which the request is based.
One has to keep in mind the large number of anti-Israel resolutions at the General Assembly. Anti-Israel debates and resolutions have consumed more time and space at the General Assembly and many of the specialized bodies of the United Nations than virtually any other subject. This reference is just one question. However, if the Court accepts jurisdiction, it is likely soon to be overwhelmed, as other organs of the United Nations have been, by the anti-Zionist lobby.
The fence/wall is just one of a wide variety of defensive tactics Israel has used to try to combat terrorism, and one of the most anodyne. In the construction of the fence, as far as I am aware, no one has died; no one was injured. Virtually all of Israeli's means of self-defence have been condemned by anti-Zionists as violations of international law. If the Court agrees to answer this advisory question, the Court can expect, seriatim, one Israeli defensive tactic after another brought before the Court for a determination of its "legal consequences".
The United Nations has lost credibility because it has allowed itself to be hijacked by anti-Zionist States. For the Court to accept jurisdiction in this case would be a signal that the defences of the Court are down and that the Court is susceptible also to an anti-Zionist hijacking.
The risks to the Court, though, go far beyond that. If the Court is prepared to answer a question on the rights and wrongs of armed conflict posed by the one side in that conflict which has the most votes at the General Assembly, there are potentially many more such questions that can be asked, not just about Israel, but about every armed conflict. The Court could end up being dragged into many armed conflicts, not in a neutral way, not in a way to help resolve the conflict, but, as here, by being asked to answer a biased one-sided question, where the Court is asked to judge the legality of the behaviour of one side only to the conflict.
General Assembly votes against Israel have been used for propaganda purposes to attempt to delegitimize the existence of the State of Israel. Delegitimization has turned into criminalization. Criminalization against Israel has turned into criminalization against Jews worldwide, as actual or perceived supporters of the existence of the State of Israel. There is a direct link between the spate of anti-Israel General Assembly resolutions and the recent global rise of antisemitism. The International Court of Justice must do everything possible to avoid being caught up in this institutional abuse. Answering the substantive international law questions in the way Israel would propose is one way of doing that. But a simpler and more direct way is simply refusing to allow the processes of the Court to be abused by those with illegitimate ends.
International justice can be harmed both by doing either too little or too much. We have seen the problems created by overreaching both in Belgium and in Spain. Attempts to extend the doctrine of universal jurisdiction for criminal prosecution beyond all recognition have led to backlash and retrenchment. For Spain, see the Guatemala Genocide case, Spanish Supreme Court decision of February 25, 2003, 42 International Legal Materials 686 (2003) and the Peruvian Genocide case, 42 International Legal Materials 1200 (2003). For Belgium, see Amendment to the Law of June 15, 1993 (as amended by the Law of February 10, 1999 and April 23, 2003) concerning the Punishment of Grave Breaches of Humanitarian Law, 42 International Legal Materials 1200 1258 (2003). The Spanish and Belgian efforts to extend the reach of international criminal justice have fuelled opposition to the International Criminal Court and hampered its development.
This reference poses a similar danger for the International Court of Justice. It is in the very nature of any political dispute that one side in the dispute is more popular than another. There is no doubt that right now, at the United Nations, the Palestinian cause can muster many votes while the Israeli cause can muster only a few. It is apparent from the way the present question was asked that the anti-Israel United Nations majority wants the Court on its side. However, the political unpopularity of Israel is no reason for Court involvement in the disputes Israel has with the Palestinian Authority or with neighbouring States. If the Court accepts to answer the question asked and sticks its head into a political dispute at the invitation of one side only to that dispute, it risks undermining both the Court and the cause of international justice.
One must consider the question in context, the context of the wars in the Middle East and the struggle for the survival of Israel in the face of opposing armies and the terrorist threat. The construction of the fence/wall is a direct response to suicide bombers.
There are all sorts of legal questions that the General Assembly could have asked the International Court of Justice about the behaviour of anti-Zionist States and the Palestinian Authority. The General Assembly could have asked:
Considering the rules and principles of international law, what are the legal consequences of the failure of States and the Palestinian Authority:
a) to prevent the activities of suicide bombers directed against Israel;
b) to prohibit the incitement to hatred against the Jewish people and war propaganda against Israel;
c) to repress and eliminate terrorism in all its forms and manifestations against Israel;
d) to ban and seize the funding of anti-Zionist terrorist organizations, including but not limited to, Hamas, Al-Aqsa Martyr's Brigade, the Palestinian Popular Liberation Front, and Hezbollah?
However, these questions were not asked. Rather, what we have is an armed conflict in the Middle East that raises many questions about compliance with international law. The side that has the greater number of votes in the General Assembly, the politically more popular side, gets to ask the Court its questions in the most tendentious way imaginable; while the side with the fewer number of votes is not able to ask the Court its questions.
In the result, the Court has the option of holding one side at fault or blameless. Yet, because it is never asked, it does not have the option of holding the other side at fault. The Court can spell out the legal consequences of the violations of international law by one side; but, because it is never asked, it cannot spell out the legal consequences of the violations of international law by the other side.
This form of questioning is inherently imbalanced. The problem is not just the answers that might be given. It is the very asking of the question.
The General Assembly, as is apparent, has built-in restraints. It is a tyranny of a majority. The only restraint is the Court itself.
The Court must decline to answer a question posed in the context of armed conflict which raises the culpability of one side only in that conflict, which asks the Court the legal consequences of the violation of international law by one side only in the conflict. Otherwise, the Court itself will be seen to be taking sides in the conflict, not as I say, because of the answer it might give, but because of its very willingness to attempt to answer the question, to legitimize such a one-sided debate.
Peace is, of necessity, a reciprocal affair. It is impossible to have peace if only one side wants peace, if only one side is prepared to lay down its arms and accept a settlement. For the General Assembly to ask, and the Court to answer, questions about the culpability of only one side in the Middle East conflict ignores the need for reciprocity for peace to occur.
Setting out the legal obligations of one side only to an armed conflict de-contextualizes the acts of the side under legal scrutiny from the armed conflict of which the acts form part. This is standard anti-Zionist fodder, treating the Israeli acts in isolation from their context, so that they are made to seem like gratuitous acts of cruelty rather than a measured response to the worst sort of violence.
Although setting out the legal obligations of both sides is not necessarily the best way to achieve peace, at least it is a positive contribution to peace. It may make sense to hold that legally each side should engage in certain behaviour. Resolutions of the Security Council, or of the General Assembly, before the anti-Zionist majority seized control of it, have called on Israel to engage in certain acts, provided Palestinians and States are willing to live at peace with Israel. However, it makes no sense even to consider what one side should do in isolation, without considering any legal constraints on the other side at all.
The question, in the form that it is asked, is a provocation and an insult, not just to Israel, but also to justice, to peace, to the Security Council and to the International Court of Justice. The Court should not swallow this insult whole and demean both itself and the cause of justice by agreeing to answer it.
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