March 1, 2004 © New York University. All Rights Reserved. Israel, the wall and the courts: sending the wrong message By Catherine Cook Global Beat Syndicate Washington—On February 23, the International Court of Justice in The Hague will hear arguments regarding the legality and consequences of the wall that Israel is constructing in the West Bank. The specter of ICJ hearings prompted Israel to launch a pre-emptive strike on the Court’s authority to rule on the issue, and it has decided not to participate in the oral hearings. Israel’s success in gaining international support for its position has prompted Palestinians to ask what the international community expects them to do to challenge Israel’s occupation policies, if even seeking a legal opinion is inappropriate. While an advisory opinion from the Court is not binding, its impact is expected to be significant. If the ICJ rules in favor of the Palestinian position that the wall built on Palestinian land is illegal, Israeli officials and pro-Israel lobbyists worry that this will help create unprecedented levels of criticism (and perhaps concrete action) related to Israel’s policies vis-à-vis Palestinians. They cite as an example the effect of the court’s 1971 advisory opinion deeming the presence of South Africa in Namibia illegal—a ruling that contributed to the imposition of international sanctions against South Africa. These are not idle concerns. There is near universal consensus that the wall is devastating Palestinians’ lives, as evidenced in numerous reports by humanitarian agencies. And there is widespread concern that the wall is not simply a “temporary security measure,” as the Sharon government argues, but rather an attempt to seize more land. International opinion on the legality of the wall is also relatively clear. In a September 2003 report, John Dugard, legal expert and special rapporteur to the UN Human Rights Commission, argued that “the time has come to condemn the wall as an unlawful act of annexation.” Last October the UN General Assembly passed a resolution declaring that the wall “is in contradiction to relevant provisions of international law” and demanded that Israel “stop and reverse the construction of the wall.” A November report by UN Secretary-General Kofi Annan stressed that Israel had not complied with that resolution, and characterized the wall’s construction as a “deeply counterproductive act” to the peace process. Indeed, increasing international criticism of the wall is what led the UN General Assembly in December 2003 to request an advisory opinion from the ICJ. Israel bases its strategy on the assumption that the Court will rule Israel’s actions illegal, as evident in the Israeli media and from statements by government officials. In the absence of a good defense, Israel has opted for a strong offense designed to discourage the court from ruling on the issue, or to mitigate the impact of any negative ruling. Israel’s main argument is that the ICJ’s jurisdiction does not extend to the issue of the wall because the issue is political, not judicial. Israel’s PR campaign seems to be working: by the January 30 deadline for submitting briefs to the court, more than 30 countries, including the United States and European Union member states, had joined Israel in submitting statements to the court either contesting its authority to render an opinion or urging it to use extreme caution in doing so. The primary concern cited is that the court’s intervention will disrupt the political process and complicate negotiations. But with the process stymied and construction of the wall steamrolling along, such arguments mean little to Palestinians who are losing their land and being isolated from one another and their sources of livelihood. As the weaker party to this conflict, Palestinians have limited means to challenge Israel’s occupation. By claiming that requests for a legal opinion from an internationally recognized court are inappropriate, countries endorsing Israel’s position undermine Palestinian efforts to protest the wall’s construction peacefully and weaken respect for the rule of law. This is the exact opposite of what should happen, and the opposite of the message that the international community should be sending to Israel, as well. ABOUT THE WRITER Catherine Cook is senior analyst at the Middle East Research and Information Project, publisher of "Middle East Report," in Washington, D.C. MERIP is a non-profit, non-governmental and independent organization providing informed, independent analysis on the contemporary Middle East. It has no links to any religious, educational or political organizations. © 2000 New York University. All Rights Reserved. The Global Beat Syndicate, a service of New York University's Center for War, Peace, and the News Media, provides editors with commentary and perspective articles on critical global issues from contributors around the world. For more information, check out http://www.nyu.edu/globalbeat/syndicate/. Home | About | Archives | Advisors | Staff