The Raq Rega E-Mail Project Issue 6

The International Court of Justice Decision on the Fence: Legal Analysis or Propaganda?

 

The International Court of Justice (the “ICJ”), an arm of the United Nations, issued an advisory opinion recently that the fence that Israel is constructing to protect its citizens from being murdered by suicide bombers (which the ICJ insists on referring to as a “wall” ) violates both humanitarian law (i.e., the law normally thought of as applying to nations outside of their borders, e.g., the Geneva Conventions) AND international human rights laws (i.e., the law that applies to governments acting within their borders).

This Raq Rega does not take a position as to the fence.  Nor do we mean here to minimize the burdens placed by the fence on some Palestinians. They clearly are suffering hardships, as are the Israelis who are killed and maimed by suicide bombers.  But we are concerned about the ICJ opinion since, in our view, it is not an objective analysis of the facts and law but rather an extremely artful example of political propaganda dressed up as a legal opinion on human rights law and international humanitarian law. 

In our view the ICJ uses a variety of rhetorical devices to bolster its reasoning, devices that act more or less subtly to disparage Israel rather than to advance or illuminate its legal
theories.  But what is most troubling is that once the dozens of pages of jurisdictional and procedural discussions are put aside, and the rhetorical devices are detected and ignored, what is left cannot, in our view, be considered a just and impartial legal analysis of the situation.  What we are left with is the unmistakable impression that the ICJ was taking a “let’s try him first then hang him” attitude against Israel. 

But, as always, we are eager for you to reach your own conclusions so we ask you to send us an email to info305@ThePrometheusFoundation,org with your name and return email address to permit us to send you a copy of the opinion.

In this Raq Rega we offer a few excerpts from the opinion to begin to show some of the reasons why we view it as we do.  We believe that these excerpts fairly represent the opinion as a whole, but, again, we encourage you to read the full opinion to decide for yourself. 


But before we share those excerpts with you, we should comment on a point to which the ICJ devotes several pages: whether the fence is on “occupied territory” or not.  Israel’s position is that the fence is on “disputed territory.”  The distinction is crucial for the ICJ because if the territory is “disputed” rather than “occupied” then for legal reasons, noted by the ICJ in its decision, the ICJ cannot find that the fence violates international law.  Let’s look at the history of the area before quoting the ICJ’s reasoning.

At the termination of the British Mandate over what was then Palestine, the area was to be divided between Jews and Palestinians.  Instead Arab armies invaded Palestine and Jordan seized the West Bank.  In the 1948 Armistice Agreements between the new state of Israel and the Arab armies that invaded the area, the ceasefire lines are defined as follows:

5(2). In no sense are the cease-fire lines [i.e., the Green Line] to be interpreted as political or territorial borders and their delineation in no way affects the rights, demands or positions of any of the parties to the cease-fire agreements regarding the final disposition of the Palestine question.

The fact is that the borders between Israel and most its Arab neighbors, including the Palestinians, have yet to be established by the political processes.  This is another way of saying that the political processes have yet to agree on how the former British Mandate of Palestine will be divided between Jews and Palestinians.

Further, traditionally one country was said to occupy another only when one attacked the other and the winner then entered the territory of the loser.  Jordan was an occupier of the West Bank.  The West Bank was never Jordanian territory, but rather part of territory that was to be divided between Jews and Palestinians. 

How, then, did the ICJ determine that the fence is on occupied territory, i.e., that Israel is an occupier even though the territory in question is to be divided between it and the Palestinians?  This is what it said:

The Court would observe that, under customary international law . . . territory is considered occupied when it is actually placed under the authority of the hostile army . . . The [West Bank] was occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power.

In light the history described above, and in light of how we traditionally think of what it means to occupy a country, is the ICJ making a convincing argument or is something else at work here?  Something like a desire to reach a certain decision irrespective of tradition, history, common sense or the law?  Every so often the ICJ lets something slip through that seems to indicate even the ICJ does not find its own reasoning convincing.  For example in the first excerpt in the next section of this Raq Rega the ICJ says that “it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine.” But if the ICJ were true to its logic, then the future frontier between Israel and Palestine would not be an issue since Israel would be required to evacuate all the so-called occupied territories.  With this language the ICJ seems to take the position, for a brief moment only, that the West Bank lands are disputed territories.

The Failure of the ICJ to Balance Israeli Lives Against Palestinian Hardships


But more troubling to us than the tenuous legal underpinnings of the ICJ’s decision, are the indications that anti-Israel sentiments of the ICJ resulted in it never giving Israel’s interests and positions a fair hearing; that all its conclusions were pre-determined from the outset.   The following are direct quotes from the advisory opinion. Our comments are in brackets and/or bold type.
 

“Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature . . .  it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” [While the ICJ says “it nevertheless cannot remain indifferent to certain fears” of the Palestinians that the existence of the fence will prejudge certain political decisions as to the future frontier between Israel and Palestine,” it apparently can remain indifferent to the fact that the fence is intended to, and in fact is very effective to, protect Israelis from being murdered by suicide bombers. It is revealing of the ICJ’s attitude towards Israel that the ICJ never once considered the effect of a failure to build the fence on Israelis in reaching its conclusions.] [The ICJ found:] “From the information submitted to the Court . . . it appears that the construction of the wall has led to the destruction or requisition of properties   [No one denies this].
. . . . That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory


[And we do not disagree.  But we would point out that the rhetoric of the ICJ seems intended to hide the fact that those restrictions are limited to the area on the Israel side of the fence, and further that the restrictions are subject to judicial review by Israeli courts which have held some to have imposed burdens that are too great on the Palestinians and have ordered remedial actions, including tearing down and moving parts of the fence]
There have also been serious repercussions for agricultural production [including cutting off Palestinians from their agricultural lands] and . . .It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water.. . . .


The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights has also observed that “With the fence/wall cutting communities off from their land and water without other means of subsistence, many of the Palestinians living in these areas will be forced to leave.” . . . In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the “freedom to choose [their] residence”.

[The ICJ is speculating that some Palestinians would find the prospect of living on the Israeli side of the wall as sufficiently distasteful that they would move and that if they did so, their decision to move would be a violation of international law by Israel,  i.e., it would constitute Israel denying them the right to choose where they want to live.]

Remembering Jean Valjean


[The ICJ then noted that while all these “facts” violated various international laws or norms, there are exceptions to those laws or norms in those cases in which:]
“the security of the population or imperative military reasons so demand. This exception however does not apply [because the ICJ found the settlements to constitute an illegal] transferring [by Israel of] parts of its [Israel’s] own civilian population into the territories it occupies.

[The ICJ appears to be saying because it finds the land on which the settlers live to be occupied territory, Israel cannot use a fence to protect them from being murdered by suicide bombers.  This may be legal reasoning, and even if it is valid legal reasoning, is there no room for compassion toward Israelis in the ICJ’s view of the legal world?]

As to . . . the destruction of personal property, [there is]an exception “where such destruction is rendered absolutely necessary by military operations”. . . . However, on the material before it, the Court is not convinced that the destructions carried out . . . were rendered absolutely necessary
by military operations. “ [Again notice the total absence of any balancing between the protection of Israelis from being murdered by suicide bombers and the burdens imposed upon the Palestinians by the fence. So is the ICJ taking the position that because it believes the settlements to be illegal transfers of population, (i.e., Israelis to the West Bank) that Israel can not take effective action to protect that population from being murdered by suicide bombers? The ICJ had this to say:] "In conclusion, the Court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. . . The Court accordingly finds that the construction of the wall, and its associated régime, are contrary to international law.” [We don’t mean to be inflammatory here, but isn’t the ICJ acting in the same manner as the court in Hugo’s Les Miserable, which sent Jean Valjean to prison for stealing some food to feed his starving family. Hugo was confident that readers would find that circumstance morally outrageous. How can you send a hungry man to jail for stealing food for his family? Similarly, how can the ICJ strip Israel of any legal means to effectively protect its citizens from being murdered?]


Our Conclusions

In our view the ICJ chose to ignore history, current events, and compassion, all of which more than justifies the construction of the fence as a reasonable human response to murder by suicide bombers. Instead it chose to adopt a sterile legal logic which has all the earmarks of masking a bias in favor of one side and a prejudice against the other. In our view, as a piece of legal analysis, the ICJ opinion is disingenuous at best. As an advocacy piece trying to appear neutral, it is a work of art.  And that is why it is so unfair to Israel. If the authors were slightly less skillful, then the opinion’s bias (and even rancor) would be obvious and the opinion would quickly be disregarded by fair thinking individuals (and that does not mean just those whose biases run in favor of Israel).

Based on the examples above, what do you think? The ICJ’s opinion runs 59 pages. We did our best to select a fair sampling for this Raq Rega, but if you have the time and inclination, send us an email at
raqrega@ThePrometheusFoundation.org and we will send you a copy so you can form a judgment for yourself based on the full opinion. We also urge you to consider the ICJ’s opinion in light of the recent decision of the Supreme Court of Israel. There Palestinian petitioners sought the assistance of the Court for their claim that a certain portion of the fence was causing disproportionate hardships to them. In that case the Israeli Supreme Court considered the interests of the Israelis in building the fence and the hardships on the Palestinians caused by the fence and agreed with the Palestinians. The Israeli Court ordered that section of the wall torn down and moved.  The Government is complying. The ICJ, undertaking no balancing at all and refusing to consider the effect on Israelis if the fence were removed, while noting in detail the hardships on the Palestinians caused by the fence, advised the entire fence, other than that portion on the Green Line, be torn down. This would, of course, remove the most effective protection Israelis have to being murdered by suicide bombers You can join this discussion by participating in our blog at
RaqRega.webpress.com

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