October 24, 2004

Blogging a Different Debate

by PG

Because I abstained from watching the debates between the presidential candidates, I couldn't offer the live coverage provided by what seemed to be half of all other politically-oriented websites. However, I can offer blogging about one of the most controversial topics in Middle East politics, that was not directly addressed in a single debate (though indirectly referred to by Cheney and Edwards): the separation barrier in Israel and the Palestinian Territories.

On July 9, the International Court of Justice issued its opinion on the legality of the wall; unlike the Supreme Court, the World Court can offer advisory opinions upon request, in this case the request of the General Assembly. Columbia Law School recently hosted a discussion between Tal Becker and Mahmoud Hmoud, legal advisers to the permanent United Nations missions of Israel and Jordan respectively. Becker also is a CLS Ph.D candidate writing on "Rethinking state responsibility for terrorism." My notes from this event aren't much better than the ones from Volokh's talk, so be forewarned.

For those looking for some background about the security fence, I highly recommend the Head Heeb's posts; as ever, Jonathan Edelstein is fascinating and fair-minded, even if you don't agree with his ultimate conclusion. His guest bloggers' posts also are worth review.

Becker presented Israel's perspective on the advisory opinion by the International Court of Justice, specifically some questions and problems Israel has--

First, understand the question put to the Court. The question posed to the Court in this case asked about a certain measure, the security fence, and asked only about that. Effectively, the Court was asked to look at a response to terrorism without looking at the terrorism itself.

The result was a distorted question. Some people thought the question inappropriate, and therefore opposed the resolution to put it before the Court. You're really only asking half the question, putting the Court into the position of answering a question politically convenient to one group. It's not appropriate to isolate one legal problem from the context; to do so says that it's OK to look at the responsibilities of only one side. Several judges on the Court agreed that there was something funny about isolating the question like that.

The issue of judicial propriety doesn't just refer to whether you answer the question, but also how you answer the question. Rigor, discipline etc. are especially important in answering a one-sided question. But due to the unfair nature of the question, the Court failed to live up to its function.

One of the issues is "Is an occupying power able to build a fence in occupied territory?" Morocco has a fence in Western Sahara; India has one in Kashmir. The occupying forces in Iraq have requisitioned private property to cordon off whole cities to prevent infiltration by insurgents. We can determine whether it is a necessary and proportionate response through cost-benefit analysis: at each section of the wall, is it causing more harm to one side than benefit to the other?

The ICJ statement was, "The Court is not convinced that the route chosen by Israel is justified by military exigencies." But the route presented to the Court actually is one that doesn't exist, and this kind of opaque, conclusory statement isn't good enough. You have to examine the military exigencies, you have to show that you've gone through the analysis. What about the places where the route veers into Palestinian territory, but it does so with the consent of the local population?

International law and human rights law applies in occupied territory. The Court should determine which obligations apply where, but doesn't. The Court cites Article 12 regarding free movement for Palestinians throughout the West Bank. But considering the security problems, where you don't know whether you're dealing with a combatant or a civilian, free movement becomes more difficult.

The Court's treatment of the issue of self defense was disappointing. There is a bizarre statement that Article 51 (right to self defense) doesn't apply unless a terrorist act is the act of a state. The first problem is that it is not an accurate reflection of Article 51, which only says "an armed attack." Look at the Caroline case [which may be especially familiar to those who followed the "pre-emptive/ preventative war" debate over Iraq], which is not about state-to-state confrontations. Post-9/11 resolutions indicate a trend of recognizing need of self defense against non-state terrorism. The Court mentions Israel's right and duty to protect its citizens, and its citizens are endangered by non-state terrorism.

The Court lacked the seriousness required by the issue. The Court also missed an opportunity. Even if the Court was engaged in this process, it had the opportunity to make a serious contribution. It actually played into the hands of those -- particularly in the U.S. -- who argue against international intitutions, because the Court allowed political pressure to dictate the questions, and came off as judges expressing political opinions.

To make the criticism without a transparent, reasoned analysis harms the credibility for the Court itself. This is a shame for me, less as an Israeli than as a lawyer. The lack of courage of the ICJ, in failing to talk about Palestinian obligations, can be compared unfavorably to the Israeli High Court's work. Based on the High Court petition, Israel is rethinking portions of the fence.

Becker concluded with a quotation from the High Court's ruling, which criticized the security fence:

We are aware of the killing and destruction wrought by terror against the state and its citizens. But we are judges. When we sit in judgment, we are subject to judgment. Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security. Only a Separation Fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for.

Jordan's legal adviser Mahmoud Hmoud spoke then. He noted that the ICJ's opinion was 15-0 on jurisdiction; 14-1 on most other aspects, including the propriety of the fence. The significance of the advisory opinion is that it is the pronouncement of an international authority. To follow the opinion of the ICJ is to comply with the law. The UN General Assembly adopted a resolution demanding that Israel comply with the ICJ ruling, a 150-6 adoption with 10 abstentions. This is what the international community considers the rule of law. It demands that Israel complies with its obligations as stated by the advisory opinion. The Court declares what the law is.

What are the legal consequences of the wall being constructed by Israel, the occupying power? No one denies that Israel is engaged in a defensive action, but Israel cannot build the wall on land that it is not its own. The wall falls more than 99% in Palestinian territory. Other nations are fine with the wall; the problem is where it is being built. They see it as another attempt to annex land by force. The request to the World Court came after the Security Council failed to act due to the U.S. veto. The Court went further by advising the UN to act to bring a resolution to the legal issues surrounding the construction of the wall.

The Court declared that territory seized in 1967 war was occupied territory, shutting the door on the contention that such territories are "disputed." Building the wall in Palestinian territory is part of a strategy to annex the territory, part of Israel's aggressive occupation.

The Court declared a right of self determination for Palestinians, which the Court said Israel was violating. The wall is not a defensive measure, but a policy against Palestine and its population. The Court rejected Israel's argument of military necessity. The Court got information on Israel's security interests, and is not convinced that the specific course Israel has chosen for the wall was necessary to achieve its security objective or to guard Israel's essential interest.

There was a brief Q&A session at the end.

Q: How can an occupied territory have obligations?

Becker's answer: Palestinian leadership does have obligations regarding the militant groups within Palestine.

Q: Looking at the settlers as a private group, are they illegitimate and thus without a right of self defense under the Geneva Convention?

Hmoud's answer: Are the settlers advancing a military purpose? If so, then they are legitimate military targets for the Palestinians to attack. If the answer is no, why are the settlements there at all?

Becker's answer: Building along the Green Line would have been proof of a political measure, because the green line is an artifical boundary. Building there would have a tremendous humanitarian impact. Parts of the fence are there to defend people living in settlements in occupied territory. Israel has an obligation under Oslo to protect its citizens anywhere. What measures can it legitimately take to meet that obligation?

October 24, 2004 12:51 PM | TrackBack
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