Wall illegal, says ICJ
On 9 July, the International Court of Justice (ICJ) based in The Hague
By making reparation, the Court meant the demolition of the wall within the Occupied Palestinian Territory, the return of land, orchards, olive groves and other property to its original owners (or, if that wasn’t possible, the payment of compensation) and the compensation of everybody who has suffered material damage as a result of the wall’s construction.
These were the conclusions of an Advisory Opinion by the Court requested by the UN General Assembly under Article 96 of the UN Charter. This says “the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”.
See here for a summary of the Opinion (entitled Legal consequences of the construction of a wall in the Occupied Palestinian Territory).
Only 8 out of 191
Of course, by itself the Opinion is hardly worth the paper it’s written on, and the same can be said of the subsequent General Assembly resolution passed on 20 July demanding that Israel comply with the legal obligations contained in it. There isn’t a snowball’s chance in hell of Israel paying any attention to either, despite the fact that only 8 out of the 191 members of the UN (including Israel and the US) voted against the General Assembly resolution.
What is required is enforcement action by the Security Council, that is, the passing of a Chapter VII resolution calling upon Israel to comply and imposing economic sanctions, of some kind, upon Israel, if it fails to comply. That would be a first: despite its serial invasions of neighbouring states, and the occupation and annexation of Arab lands, Israel, unlike Iraq, has never been the subject of a Chapter VII Security Council resolution, let alone one with economic or military sanctions. The US would, of course, veto such a resolution, as it regularly does to Security Council resolutions which are merely condemnatory of Israel, and have no sanctions attached.
However, that should not stop other members of the Security Council proposing a Chapter VII resolution demanding that Israel fulfil the legal obligations specified by the Court, on pain of economic sanctions – and forcing the US to veto it on Israel’s behalf.
The sequence of events which led to the ICJ ruling began with the US exercising its veto in the Security Council last autumn on a resolution on the wall. This resolution did not seek to impose sanctions on Israel: it merely declared the wall to be illegal and said it should be removed. The operative paragraph of it was:
“[The Security Council] Decides that the construction by Israel, the occupying Power, of a wall in the Occupied Territories departing from the armistice line of 1949 is illegal under relevant provisions of international law and must be ceased and reversed;”
This resolution, which was sponsored by Syria, Pakistan, Malaysia and Guinea on 14 October 2003, was supported by 10 out of the 15 members of the Security Council (the sponsors plus Angola, Chile, China, France, Russia and Spain) with only the US opposing. The UK abstained, along with Bulgaria, Cameroon and Germany. On this occasion there wasn’t a common EU position. It is worth noting that Aznar was still in power when Spain voted for this resolution.
Explaining the US opposition, the US representative said:
“The draft resolution put forward today was unbalanced and did not condemn terrorism in explicit terms. It failed to address both sides of the larger security context of the Middle East, including the devastating suicide attacks that Israelis have had to endure over the past three years. A Security Council resolution focused on the fence does not further the goals of peace and security in the region. We believe that all resolutions on Israeli-Palestinian peace should reflect the kind of balance of mutual responsibilities embodied by the Quartet’s road map. That draft resolution did not do so.”
Under Article 12.1 of the UN Charter, the General Assembly is not allowed to make recommendations on an issue being considered by the Security Council. Ironically, the failure of the Security Council to take a view on the wall because of the US veto enabled the General Assembly to consider it.
Technically, this was done by reconvening the Tenth Emergency Session of the General Assembly, which first came into existence in April 1997 to discuss “Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory”, and has been suspended and reconvened about a dozen times since, usually when the Security Council failed to take a view on matters under this heading, often because of a US veto.
After the US veto on 14 October 2003, the Tenth Emergency Session was reconvened and on 21 October 2003 resolution ES-10/13 (that is, resolution 13 of the Tenth Emergency Session) was passed. It echoed the vetoed Security Council resolution a few days earlier in demanding that the wall be pulled down, the operative paragraph being:
“[The General Assembly] Demands that Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law;”
This resolution was sponsored by the EU amongst others and the UK voted for it, having abstained a week earlier on a Security Council resolution which expressed the same demand. The resolution was carried overwhelmingly by 144 to 4 with 12 abstentions. Naturally, Israel opposed it, and as usual the US stood by its side, but only the Federated States of Micronesia and the Marshall Islands voted with them.
Request for Advisory Opinion
Arab states always regarded this resolution as a step on the way to getting the ICJ to give an Advisory Opinion on the legality of the wall. To that end, the resolution contained a request that the Secretary-General report back on Israel’s compliance periodically, and initially within a month, with a view to further action within the UN system.
The inevitable negative report from Kofi Annan was used to trigger another reconvening of the Tenth Emergency Session to consider a resolution to request the ICJ for an Advisory Opinion on the legal consequences of the construction of the wall. This was passed by 90 votes to 8 with 74 abstentions as resolution ES-10/14 on 8 December 2003. The Israeli representative took comfort in the fact more than half the membership of the UN did not vote for, what he called “the biased resolution”. How a resolution that asks for a legal opinion can be described as biased is a mystery.
Again, Israel opposed the resolution supported by the US, but this time they had the additional company of Australia, Ethiopia, Nauru and Palau. This time the EU states, including the UK, abstained. Speaking for the EU as a whole, Italy reiterated the EU’s strong objection to the wall but declared that “the proposed request for an advisory opinion from the ICJ would not help the efforts of the two parties to re-launch a political dialogue and was, therefore, not appropriate”.
General Assembly speaks again
Seven months later, the ICJ delivered the Advisory Opinion. In yet another resumption of its Tenth Emergency Session, the General Assembly has now done all it can to get compliance by passing a resolution (ES-10/15 of 20 July 2004) demanding that Israel comply with its legal obligations as set down by the ICJ in its Advisory Opinion. The resolution also requested the UN Secretary-General to establish a register of damage caused by Israel to individuals or corporate bodies in the construction of the wall, so there will be an internationally accepted record of Israeli despoliation of Arab property in order to construct the wall.
There was a remarkable degree of unanimity in favour of this resolution. It was carried by 150 votes to 6 with 10 abstentions. Israel and the US were joined in opposition by Australia, Federated States of Micronesia, Marshall Islands and Palau. Most states which abstained last December on the vote to request the ICJ for an Advisory Opinion (in resolution ES-10/14) now voted that Israel comply with the legal obligations set out in the Opinion. Amongst these were the 25 states of the EU. It was difficult for them to do otherwise since they had all voted last October to have the wall stopped and reversed. Broadly speaking, therefore, the vote in July was the same as the vote last October.
Chapter VII resolution
It goes without saying that Israel is going to ignore the ICJ ruling and the General Assembly resolution demanding Israeli compliance with it. What is needed now is that a Chapter VII resolution be proposed in the Security Council demanding Israeli compliance and imposing economic sanctions on Israel if it fails to comply. If such a resolution is proposed, it will come from the four members of the Islamic Conference – Guinea, Malaysia, Pakistan and Syria – which are members of the Security Council at the moment. Any such resolution will, of course, be vetoed by the US, but the more the US is seen to be isolated internationally on Israel’s behalf on this issue the better.
The degree to which the US is isolated on the Security Council depends crucially on the four EU states on the Council. It’s very unlikely that there would be a common EU stance in favour of such a resolution. Most likely, there would be a common EU policy to abstain, which would suit the UK down to the ground. Voting for such a resolution is the surest way to get Britain off al-Qaeda’s hit list, and to get Muslim votes to return to Labour (apart from withdrawing our troops from Iraq). No matter how anybody else votes, the resolution will not pass because the US will veto it.
The process should be driven to that point, because it would provide yet another illustration that a system of law governing the action of states doesn’t exist in this world. An independent international court has decreed that Israel is engaged in activity contrary to well-established international conventions. But it doesn’t need to take any notice of the court’s Opinion because the only body capable of making it comply with the obligations in the Opinion – the Security Council – will be prevented from acting by a US veto.
Because each of the five permanent members have a veto, it is impossible for the Security Council to take enforcement action against any of them, or their allies. The most powerful states in the world, and their friends, are immune from sanction by the Security Council – and they can invade their neighbours and ignore the judgements of the ICJ in the sure and certain knowledge that they cannot be brought to book.
Nicaragua vs US
In 1984 Nicaragua took the US to the ICJ about US attacks on Nicaragua, both directly and through its aid to the Contras, including the laying of mines in Nicaraguan territorial waters. On 27 June 1986, the ICJ gave a comprehensive ruling against the US, ordering it to cease such attacks, and to pay compensation to Nicaragua (later set at over $2 billion).
The US ignored both directives, despite the fact that Article 94 of the UN Charter says:
“Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
Article 94 goes on to say that if a party fails to comply, the other party may ask the Security Council to take measures to effect compliance:
“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.“
In this case, the Security Council was unable to effect compliance: the criminal had a veto in the supreme court – and he exercised it to get himself off, voting against Security Council resolutions ordering compliance on 31 July 1986 and again on 28 October 1986.
The UN Charter specifically obliges UN members to comply with the ICJ decision in any case to which it is a party. There is no such specific obligation in the Charter with regard to legal obligations laid upon members by the ICJ in Advisory Opinions. That’s why an ICJ Advisory Opinion is said to be non-binding.
But, in either case, if a state refuses to comply with legal obligations laid down by the ICJ, the only way to enforce compliance is by a Chapter VII Security Council resolution with sanctions. The US is sure to veto such a resolution requiring Israel to comply with the ICJ ruling on the wall. In this case, the criminal has a friend with a veto in the supreme court – who will exercise it to get him off.
The day the ICJ published its Opinion, New York's two senators, Democrats Hillary Clinton and Charles Schumer, joined Israel's UN Ambassador, Danny Gillerman, at a press conference in front of UN headquarters in New York to denounce it. Clinton said:
"It makes no sense for the United Nations to vehemently oppose a fence which is a non-violent response to terrorism rather than opposing terrorism itself".
Senator John Kerry responded in similar vein:
"I am deeply disappointed by today's International Court of Justice ruling related to Israel's security fence. Israel's fence is a legitimate response to terror that only exists in response to the wave of terror attacks against Israel. The fence is an important tool in Israel's fight against terrorism. It is not a matter for the ICJ".
By comparison, President Bush is a moderate: he went so far as to say, albeit in July last year:
“I think the wall is a problem, and I have discussed this with Ariel Sharon. It is very difficult to develop confidence between the Palestinians and the Israelis … with a wall snaking through the West Bank.”
On 15 July, the US House of Representatives passed a resolution deploring the ICJ decision by a 361-45 majority, the majority of Democrats joining their Republican colleagues to commend “the President and the Secretary of State for their leadership in marshaling opposition to the misuse of the ICJ in this case”. The resolution deplored “the misuse of the International Court of Justice (ICJ) by a majority of members of the UN General Assembly for the narrow political purpose of advancing the Palestinian position” and went on to warn that states “risk a strongly negative impact on their relationship with the people and Government of the United States should they use the ICJ's advisory judgment as an excuse to interfere in the Roadmap process”.
On 20 July, an even stronger Senate resolution was introduced “Supporting the construction by Israel of a security fence to prevent Palestinian terrorist attacks, condemning the decision of the International Court of Justice on the legality of the security fence, and urging no further action by the United Nations to delay or prevent the construction of the security fence”. This Senate resolution has yet to be voted on, but it has bipartisan support and is sure to pass.
A noteworthy aspect of it is that, if passed, it will be the first time either House of the US Congress has passed a resolution which refers to the West Bank, not as occupied territories, but as “disputed” territories. It includes the clause:
“Whereas construction of the security fence does not constitute annexation of disputed territory because the security fence is a temporary measure and does not extend the sovereignty of Israel;”
This distinction is important for two reasons: the word “disputed” implies that the claims of Israel to the West Bank are as legitimate as the claims of Palestinians who have lived on the land for centuries; and, disputed territories – unlike occupied territories – do not fall under the Fourth Geneva Convention and many other international legal statutes.
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