What is most remarkable about the International Court of Justice decision
on Israel's ''security barrier'' in the West Bank is the strength
of the consensus behind it. By a vote of 14-1, the 15 distinguished
jurists who make up the highest judicial body on the planet found
that the barrier is illegal under international law and that Israel
must dismantle it, as well as compensate Palestinians for damage to
their property resulting from the barrier's construction.
The International Court of Justice has very rarely reached this degree
of unanimity in big cases. The July 9 decision was even supported
by the generally conservative British judge Rosalyn Higgins, whose
intellectual force is widely admired in the United States.
One might expect the government of Ariel Sharon to wave off this notable
consensus as an ''immoral and dangerous opinion.'' But one might expect
the United States -- even as it backed its ally Israel -- at least
to take account of the court's reasoning in its criticisms. Instead,
both the Bush administration and leading Democrats, including Senators
John Kerry and Hillary Clinton, mindlessly rejected the decision.
Even the American justice in The Hague, Thomas Buergenthal, was careful
in his lone dissent. He argued that the court did not fully explore
Israel's contention that the wall-and-fence complex is necessary for
its security before arriving at its sweeping legal conclusions. But
Judge Buergenthal also indicated that Israel was bound to adhere to
international humanitarian law, that the Palestinians were entitled
to exercise their right of self-determination and, insofar as the
wall was built to protect Israeli settlements in the West Bank and
East Jerusalem, that he had ``serious doubt that the wall would. .
.satisfy the proportionality requirement to qualify as legitimate
self-defense.''
The nuance in Buergenthal's narrow dissent contrasts sharply with,
for instance, Kerry's categorical statement that Israel's barrier
``is not a matter for the ICJ.''
To the contrary, Israel's construction of the wall in the West Bank
has flagrantly violated clear standards in international law. The
clarity of the violations accounts for the willingness of the U.N.
General Assembly to request an advisory opinion on the wall from the
court, a right it has never previously exercised in relation to the
Israeli-Palestinian conflict. The clarity also helps to explain Israel's
refusal to participate in the ICJ proceedings -- not even to present
its claim that the barrier under construction has already reduced
the incidence of suicide bombing by as much as 90 percent.
Significantly, the court confirms that Israel is entitled to build
a wall to defend itself from threats emanating from the Palestinian
territories if it builds the barrier on its own territory. The justices
based their objection to the wall on its location within occupied
Palestinian territories, as well as the consequent suffering visited
upon affected Palestinians.
If Israel had erected the wall on its side of the boundary of Israel
prior to the 1967 war, then it would not have encroached on Palestinian
legal rights. The court's logic assumes the unconditional applicability
of international humanitarian law, including the Fourth Geneva Convention,
to Israel's administration of the West Bank and Gaza (a principle
affirmed by Judge Buergenthal). That body of law obliges Israel to
respect the property rights of Palestinians without qualification,
and to avoid altering the character of the territory, including by
population transfer.
The decision creates a clear mandate. The ICJ decision, by a vote
of 13-2, imposes upon all states an obligation not to recognize ''the
illegal situation'' created by the construction of the wall. This
is supplemented by a 14-1 vote urging the General Assembly and Security
Council to ``consider what further action is required to bring an
end to the illegal situation.''
Such a plain-spoken ruling from the characteristically cautious International
Court of Justice will test the respect accorded international law,
including U.S. willingness to support international law despite a
ruling against its ally. The invasion of Iraq and the continuing scandals
have already tarnished the reputation of the United States as a law-abiding
member of the international community. When U.S. officials dismiss
the nearly unanimous ICJ decision without even bothering to engage
its arguments, America's reputation suffers further. In fact, elsewhere
in the world, U.S. repudiation of this decision can only entrench
existing views of America as an international outlaw.
Richard Falk is the Albert G. Milbank Professor Emeritus of International
Law and Practice, Princeton University.
MERIP
OP-EDS
A Country at a Crossroads The Austin-American Statesman (Austin, Texas) November 9, 2007
Kamran Asdar Ali
"A
very frank discussion"— so President Bush described
his Nov. 7 telephone
conversation with Pervez Musharraf, four days after the Pakistani
general
imposed a state of emergency and dissolved the high court expected
to rule
his continued presidency unconstitutional. And frank the discussion
probably
was: In the face of spirited protest in Pakistan, and a querulous
press in
Washington, back-channel pressure succeeded in persuading Musharraf
to
promise parliamentary elections. Yet the generous U.S. aid earmarked
for
Pakistan — on top of nearly $10 billion since 2001 — is
quite evidently not
at risk.
What may be at risk is Musharraf's tenure as head
of the military government. Full
story>>
The
war debate in Washington is bogged down. Partisan rancor is one
reason why, and bipartisan desire for US hegemony in the oil-rich
Persian Gulf is
another. But many Americans are vexed by a nobler concern: that
a
“precipitous” US departure from Iraq would leave intensified
civil war,
ethnic-sectarian cleansing and massive refugee flows in its wake.
This
concern is legitimate. Unfortunately, the sad fact is that Iraq’s
civil war
and humanitarian emergency have grown steadily worse as the US
military
deployment there wears on. Full
Story>>
Should
the United States, seeking to recalibrate the balance between
security and liberty in the "war on terror," emulate
Israel in its treatment of Palestinian detainees? That is the position
that Guantanamo detainee lawyers Avi Stadler and John Chandler
of Atlanta, and some others, have advocated. That people in U.S.
custody could be held incommunicado for years without charges,
and could be prosecuted or indefinitely detained on the basis of
confessions extracted with torture is worse than a national disgrace.
It is an assault on the foundations of the rule of law. Full
Story>>
There
is an oft-told Palestinian allegory about a family who complained
their house was small and cramped. In response, the father brought
the farm
animals inside -- the goat, the sheep and the chickens all crowded
into the
house. Then, one by one, he moved the animals back outside. By
the time the
last chicken left, the family felt such relief they never complained
of the
lack of elbow room again. Full
Story>>
