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Does the World Court's Condemnation of Israel Matter?

As the World Court issued its verdict, the Israeli government rapidly mobilized its representatives in Tel Aviv and Washington to present a united front criticizing the judgment and, in the case of the Israelis, stating that the judgment will be ignored. The Israeli government is now counting on the US to veto any resolution providing for sanctions and reparations to correct the atrocities that have already taken place. We have seen a debate ensue in periodicals and on news shows as to whether the Court (formally known as the International Court of Justice) had jurisdiction to hear the case and whether the Israeli government should obey it. The real question that should be asked is how the rhetoric that is being spewed and the obstruction of legality and the “rule of law” that is supposedly recognized internationally is further destroying the institutions of international law.

The answer to the question of whether Israel was in violation of almost all human rights and humanitarian law that exists is an easy affirmative. The “apartheid wall” or “fence” that was constructed clearly violates the Geneva Conventions, UN Charter, Universal Declaration of Human Rights (recognized as established binding customary law), International Covenant of Civil and Political Rights, legal principles articulated in countless ICJ and regional judicial cases, as well as several UN General Assembly and Security Council Resolutions. The Israeli government was in violation of both positive and negative international law obligations regarding the occupation of Palestinian territory. While it is true that the Palestinian Authority and certain terrorist groups have consistently broken international law throughout the hostilities, this does not in any way remove the obligation of the Israeli government to refrain from oppressive acts and the violation of its obligations. This is clearly stated in the Geneva Conventions. Neither historical complaints nor political maneuvering can excuse the parties from their obligations under international law. The fact also remains that Israeli state terrorism has cost many times more lives and more damage than any amount of Palestinian terror, although all terrorist activity is blatantly illegal and immoral. The right to “self defense” does not apply in terms of the Article 51 UN Charter exception and was rightly rejected by the Court. This is not a bias against Israel, rather it is the recognition that “pre-emptive” oppressive measures violate international law and do not fit under the definition of “self defense” as articulated by Daniel Webster and still accepted as the applicable legal standard. The case was a “slam dunk,” to use the parlance of legal practitioners, as soon as the case got beyond the jurisdictional issue. What is difficult to comprehend is how the public and highly intelligent academics could possibly be lulled into believing that there was even a jurisdictional question in the case?

The International Court of Justice began as the World Court after the development of the League of Nations and formerly became the ICJ after the signing and ratification of the UN Charter after the conclusion of hostilities of World War II. The UN Charter clearly states that all parties who are signatories to the Charter willingly submit themselves to the jurisdiction of the ICJ. The UN Charter also recognizes that there are certain parties that will be recognized as representing legitimate states, in this case the Palestinians that will also be able to bring cases before the ICJ. The ICJ is also able to issue advisory opinions to questions formally requested answered by the United Nations General Assembly. In the particular case, all parties to the case are signatories to the UN Charter, and the General Assembly requested the opinion, thus fulfilling the main jurisdictional requirement.

Certain individuals have argued that the ICJ should not have accepted jurisdiction of the case due to its highly politicized nature. While it is true that the case has a highly charged atmosphere, it is the discretion of the ICJ as to whether the justices feel like accepting a case falling in this category, and there is no legal basis for asserting that the Court has no jurisdiction. Those advocating that the ICJ not decide the case had very little historical precedent to lean on for their arguments, and ended up having to make the argument based on highly ideological grounds. As the decision (14-1) indicates, the jurisdictional issue was also a “slam dunk.” One wonders if those making the jurisdictional argument were trying to save face for their support and inaction in the face of the atrocities taking place. To support the contention that the ICJ had every reason to take the case, one need only look back in history at prior ICJ decisions, and at the mandate of the Court in the UN Charter.

The ICJ has historically heard cases that all have certain similarities to the present case, such as the Chad v. Libya land dispute, Namibia v. South Africa occupation and hostilities case, Nicaragua v. US crimes against humanity case, New Zealand v. France Nuclear Tests case, advisory opinion on the use of nuclear weapons (both in general and in humanitarian law), and cases involving criminal activity and the examination of diplomatic laws involving foreign nationals. Furthermore, the UN charter specifically prescribes that the ICJ has the jurisdiction to hear cases stemming from relevant international law. As human rights law, humanitarian law, sustainable development law, and several other legal areas are invoked in this case, the ICJ surely has the ability to both hear and judge on the matter. The justices have all the materials they could need as well as experts available at their disposal so that they can have the most informed views and detailed information regarding a situation before they decide to take a case and while they are deciding on it. Most are renowned legal scholars in their own nations, except for the politically motivated judges of the U.S. and other members of the P5, particularly France and China.

There have been several “experts” and news sources that have mistakenly claimed that the ICJ’s decision is non-binding. This is absolutely false and owes its existence to the failure of the UN and its member nations to fulfill their obligations under international law to help uphold the decisions of the ICJ. The opinions of the ICJ in advisory opinions are no different than the decisions of the Court in standard State v. State cases. The only difference is that the advisory opinions are requested by the General Assembly. One can play semantics and state that all decisions of the ICJ, or any court in the world for that matter, are non-binding unless individuals or governments are willing to abide by them. As with all courts, the ICJ has no enforcement mechanism and relies on the authority of the “rule of law” and morality to compel states and the UN into supporting its judgments and enacting the necessary sanctions and solutions.

One would be wise to note the part of the ICJ decision where the Court calls notice to those nations who are signatory to the Geneva Conventions to their obligations to uphold those conventions not only within their own sovereign borders, but also internationally. This means that by vetoing any UN resolution sanctioning Israel, the U.S. and any other member of the P5 would necessarily also be in violation of international law. Americans should also always remember that when we speak of any law, treaty, or convention that has been signed by the president and ratified by the Congress, we speak of a legal standard that is then the “supreme law of the land” and is part of our own constitutional law. By violating these conventions, the government then violates our own constitutional framework as established by the Founders.

Since, in the illegal Iraq War and occupation we have seen the U.S. and U.K. governments’ utter disdain for international and their own constitutional law, the question becomes the damage that is being done to the international system that is so necessary in this age of globalization where it is pointless to try and argue that anything is “sovereign” anymore and that we can do things that do not have global effects. We have seen in the Nicaragua case and the Nuclear Weapons advisory opinion the paucity of U.S. and P5 commitments to human rights and the “rule of law” outside of their own interpretation of what they want to follow. Indeed, the U.S. is the only nation to have been ruled guilty of crimes against humanity and then to have vetoed the UN Resolution adopted sanctioning it for those acts. This act of utter hypocrisy and its effect on the authority of international law simply cannot be overstated. Likewise is the hypocrisy of the P5 and other nuclear nations in the Nuclear Weapons case.

Ironically, the ICJ opinions that have been heeded have been those involving many states that would be considered “rogues” or “misguided,” for example the Namibia v. South Africa case where the UN General Assembly was compelled to begin sanctions against South Africa for the illegal invasion of Namibia (which would have been far more effective had the U.S. not supported the apartheid government well into the 80’s), the Nauru environmental law case, the Hungary v. Slovakia dam case (the leading sustainable development law case), and the Chad v. Libya case where the Libyan forces (dastardly at the time, according to the U.S.) abandoned occupied areas of Chad without resistance after the issuing of the opinion. There were, and always are, other contributing factors in all these cases, such as the international boycott of South Africa following the Namibia decision, but this does not lessen the authority of the ICJ or international law, this simply acknowledges that nations were actually heeding that authority and working together to uphold the international system we so dearly need in this day and age.

The international system that we know today has taken over 400 years and three major wars to become somewhat of a reality. Differences in ideology have been the only discrepancies along the way, not differences in legal thought or the basis of the rights recognized. One can even argue that the international system and rights articulated date back thousands of years, as Islamic jurisprudence greatly affected Grotius, and there are what could be called international (for that period) rights recognized in most if not all of the major cultures, including Egypt, Hinduism, Buddhism and all the major faiths, as well as Pacific Island cultures.

U.S. and Israeli actions, along with disrespect for international law globally by Russia in Chechnya, China in Tibet, the Zimbabwean and Sudanese governments, and others are continuing to endanger the international system in a manner that threatens to tear down those laws and rights that have been built up over the ages and return us to a “might makes right” reality. As the lone superpower it is up to the U.S. to actually lead by example for a change and support international legality and the “rule of law.” The U.S. is largely responsible for making the UN the failure it is today, not because others have not contributed to the problem, but because as the superpower and the state with the largest impact globally, the failure of U.S. administrations to respect and obey international law tears down the system and establishes the appearance of a double standard that entices other nations to ignore international agreements as well.

It is true that the UN has many problems, chiefly that of being based on a flawed and outdated nation-state sovereignty principle and of being the result of victor’s justice coming out of WWII that often neglects Middle Eastern, African, and Eastern cultures and viewpoints. How can it possibly be seen as a good thing that the U.S. and developed Western nations ignore their own standards? How does this not qualify as, “one standard for the globe that we get to enforce as we see fit, but do not have to follow?” This thinking smacks of the remnants of colonialism, the desire for US global hegemony, the failure that is sovereign self interest, and legal positivist thinking that somehow places the sovereign above the law.

Let us hope that it becomes clear to those who are still confused that the debate over the ICJ decision should not be couched in legality and jurisdiction, as those questions are easily answered. The real question should be how the U.S. and P5 can uphold the “rule of law” and international conventions that are not only part of international law, but of their own constitutional law frameworks as well. Unfortunately, from the paucity of intelligent and informed discourse currently available, this scholar fears that the ignorance and hypocrisy can only continue, which means grave things for an international structure that cost millions of lives to become a viable reality, as well as for the lives of innocents trying to truly live in peace around the globe who will continue to be caught in the crossfire or oppressed due to our failures.