Decision Dismisses Israel's Arguments, Accepts Palestinian Claims Without Reservation
Revised: July 9, 2004
The International Court of Justice (ICJ) issued its decision on the Israeli security barrier on July 9. The Court announced that Israel violated international law in the routing of the security fence and called on Israel to dismantle sections built in the West Bank and East Jerusalem. In a statement to which U.S. judge Thomas Buergenthal and Dutch judge Pieter H. Kooijmans dissented, the court further called on the international community to refrain from rendering "aid or assistance in maintaining the situation created by such construction" (of the fence). In its decision, the Court easily dismissed the arguments of Israel, along with those of 22 other nations who submitted written briefs, while accepting without reservation the arguments of the Palestinians and their supporters.
On December 8, 2003, the General Assembly (GA), in a special emergency session adopted a Palestinian-initiated resolution sending the issue of Israel's security barrier to the International Court of Justice (ICJ) in The Hague for an advisory opinion on the question: "What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory." The Palestinian Authority and supporters had attempted to have the Security Council pass such a resolution, however these efforts were unsuccessful, and they turned instead to the General Assembly, where anti-Israel resolutions are routinely supported by the majority of member nations. The resolution passed 90-8, with 74 countries abstaining.
The ICJ heard oral presentations for three days beginning on February 23. This marks the first time that the ICJ will give an opinion on an issue related the Israeli-Palestinian conflict. The ICJ consideration of this matter is highly problematic - both for the hope for Israeli-Palestinian reconciliation as well as for the integrity of the court.
The ICJ decision comes just a week after the Israeli Supreme Court ordered a section of the barrier outside of Jerusalem rerouted to reduce hardships caused by the location of the fence. The opinion upheld Israel's right to build the fence of security reasons. The Israeli court's decision demonstrates the vibrant nature of Israel's democracy and its independent judiciary, its commitment to the rule of law and to upholding humanitarian principles - even while fighting a war against terrorism. It also demonstrates that the routing and the very existence of the fence is changeable and not permanent.
What is The International Court of Justice?
The International Court of Justice, based in the Hague, describes itself on its website as "the principal judicial organ of the United Nations." The Court presents its mandate as serving a dual role - first to resolve legal disputes submitted by individual states, and second to provide advisory opinions on questions of international law referred to it by other international bodies. The Court is composed of 15 judges from 15 different states. Each judge is elected to a nine-year term of office; elections are held every three years for three of the seats. The judges are considered independent, and do not serve as representatives of their particular country. The current makeup of the court includes judges from Brazil, China, Egypt, France, Germany, Japan, Jordan, Madagascar, the Netherlands, Russia, Sierra Leone, Slovakia, Venezuela, the United Kingdom and the United States.
It should be noted that because Israel is currently barred from participating in United Nations Geneva-based regional groups (although Israel is now a member of the New York-based UN regional group) an Israeli judge cannot be elected to the court, nor can the State of Israel even participate in the voting for the makeup of the court.
According to the Court's web site, only states can appear before the ICJ. The Court, in turn, can hear and rule on a dispute only if the states concerned have accepted its jurisdiction. The Court's advisory procedure, by contrast, is open solely to international organizations. The five organs of the United Nations (UN) and sixteen specialized agencies are the international bodies currently authorized to request advisory opinions. When a request for an advisory opinion is submitted to the Court, by its rules the Court can decide which states and organizations might provide useful information. Those states and organizations are then offered the opportunity to present written or oral statements. Apart from this process, the procedure for advisory opinions is similar to that used to resolve formal disputes, and relies on the same body of international law.
The ICJ's advisory opinions are "consultative in character and are therefore not binding as such on the requesting bodies." It is possible, however, that certain instruments or regulations can provide in advance that an advisory opinion will be binding. According to the ICJ web site, the Court has issued 24 Advisory Opinions since 1946.
What is Israel's Security Fence?
Israel's security fence is a defensive measure enacted by Israel to prevent Palestinian terrorists from reaching their civilian targets inside Israel. The decision to build the fence was undertaken by the Government of Israel following three years of unabated terrorism by Palestinians suicide bombers, who have targeted Israeli buses, cafes, shopping centers and other gathering points for Israeli civilians. Nearly 1,000 Israelis have been killed, and thousands severely injured in these attacks. Throughout this period, the Palestinian Authority has done nothing to prevent these attacks or to abolish the terrorist infrastructure despite its commitment to do so in agreements with Israel. Israel had no choice but to take strong action to stop these terrorists from entering Israel from their operation centers in the West Bank.
The 480-mile security barrier, currently under construction, is comprised 97% of chain link fence and 3% of a concrete barrier. The entire barrier is a multi-fence system which incorporates ditches, barbed wire, patrol roads and observation systems. Contrary to anti-Israel propaganda, only 5 miles of the barrier is concrete, or can be described as "a wall." The concrete sections are primarily in the area of the Palestinian cities of Qualqilya and Tulkarim, the locus of many terrorist operations, where snipers often shoot at Israeli civilians.
Already the security fence is helping to prevent terrorist bombings. According to the Israeli government, there has been a dramatic decrease in Palestinian terrorism - not because there have been no attempted attacks, but because the security barrier has impeded terrorists from reaching Israeli cities, or has forced them to take more circuitous routes, leading to their capture. Indeed, to date in 2004, no Israeli has been killed in a terrorist attack in an area with the security fence, whereas 19 were killed, and 102 injured in areas where the fence has not been completed. (See Statistics Here)
The Government of Israel has stated that the security fence is a temporary and reversible measure that has been created in reaction to the reality of ongoing Palestinian terrorism. Should the Palestinian Authority take steps to end the terrorism and if progress is made in peace negotiations, there will be no need for this protective barrier and it can be dismantled.
Conflict to be Determined Through Negotiations, not The Court
It is clear that the International Court of Justice is not an appropriate forum for issues related to the Israeli-Palestinian conflict. These issues, including the security fence, should be settled through bilateral negotiations, and not be predetermined or imposed by the ICJ or other international bodies. This principle of direct negotiations by the parties is enshrined in all Middle East peace initiatives - including the UN-co-sponsored Road Map. (The UN is a member of the "Quartet" which sponsored the Road Map, and includes the United States, the European Union and Russia.) Preempting, prejudging or bypassing those negotiations threatens the real hope for peaceful relations between Israelis and Palestinians.
A non-binding opinion by the ICJ will make little practical difference on the ground, but those countries who lobbied for the UN resolution are more interested in scoring public relations points against Israel than in seeking constructive opportunities to promote reconciliation between Israel and the Palestinians.
Indeed, the very wording of the General Assembly resolution is politically charged and extremely prejudicial, reflecting the motivation of the resolution's sponsors and supporters. The security barrier is called a "wall," Israel, the "occupying Power," and the West Bank referred to as "Occupied Palestinian Territory." There is no mention of Israel's reasons for constructing the security fence orof Palestinian terrorism - factors that the Court must consider for a fair opinion.
Dangerous Repercussions for The Integrity of The Court
There are serious repercussions to the ICJ issuing an opinion on a highly contentious and political issue which has been referred to them as a result of a politicized campaign by the U.N. General Assembly. This is a serious misuse of the Court and threatens to undermine its integrity and the integrity of international law. It opens the door to similar politicized campaigns to bring sovereign nations, such as the United States, to defend their foreign policy before the International Court of Justice.
Moreover, while the ICJ statute allows for UN bodies to refer issues to the ICJ for advisory opinions, disputes are heard by the ICJ only if the principal countries accept the jurisdiction of the ICJ. Given the contentious nature of this dispute, and the fact that Israel has not accepted to jurisdiction of the ICJ to rule on this matter, an advisory opinion on the security fence could be considered a contravention of the Court's established principles of jurisdiction and could set a precedent for its involvement in other political conflicts.
Continuing Manipulation of UN System by Anti-Israel Forces
For over fifty years, a campaign of manipulation and abuse of the United Nations system has been waged by those who seek to isolate and delegitimize the State of Israel. The General Assembly, the UN Commission on Human Rights, and other UN bodies regularly demonize Israel in biased resolutions, unbalanced scrutiny, and in hostile statements. Such anti-Israel activities and statements raise serious questions about the United Nations' interest in Israeli-Palestinian reconciliation, as well as to the appropriateness of the UN Secretariat's involvement in Israeli-Palestinian negotiations as a member of the Road Map Quartet. This anti-Israel environment in the UN serves to undermine constructive efforts to promote Israeli-Palestinian negotiations.
Presentations to the Court
In the weeks leading up to the Court's oral hearings, forty-nine nations and international organizations, submitted briefs to the ICJ. The majority, including the European Union (all 15 current members, plus the ten countries joining), the United States, Canada, Russia, Australia, Micronesia and the Marshall Islands submitted written briefs questioning the International Court of Justice's jurisdiction to advise on the issue of Israel's security fence. Others, including the member nations of the Arab League and Cuba, submitted briefs arguing for an ICJ opinion on the fence.
In addition, fifteen countries, all of whom called for an ICJ opinion condemning the fence, made oral presentations before the Court.
The written briefs and oral presentations are available on the ICJ Web Site.
ADL has also prepared a summary of the oral and written arguments.
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Other Information Sources
International Court of Justice
Israel Defense Forces
Israel Ministry of Foreign Affairs
Foreign Affairs (.pdf format)
The Financial Times