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What is most remarkable about the International Court of Justice
decision on Israel's "security barrier" in the
West Bank
is the strength of the consensus behind it. By a vote of 14-1, the
15 distinguished jurists who make up the highest judicial body on
the planet found that the barrier is illegal under international law
and that Israel must dismantle it, as well as compensate
Palestinians for damage to their property resulting from the
barrier's construction. The International Court of Justice has very
rarely reached this degree of unanimity in big cases. The July 9
decision was even supported by the generally conservative British
judge Rosalyn Higgins, whose intellectual force is widely admired in
the United States.
One
might expect the government of Ariel Sharon to wave off this notable
consensus as an "immoral and dangerous opinion." But one might expect
the United States-even as it backed its ally Israel-at least to take
account of the Court's reasoning in its criticisms. Instead, both the
Bush administration and leading Democrats, including Senators John Kerry
and Hillary Clinton, mindlessly rejected the decision.
Even
the American justice in The
Hague,
Thomas Buergenthal, was careful in his lone dissent. He argued that the
Court did not fully explore
Israel's
contention that the wall-and-fence complex is necessary for its security
before arriving at its sweeping legal conclusions. But Judge Buergenthal
also indicated that Israel was bound to adhere to international
humanitarian law, that the Palestinians were entitled to exercise their
right of self-determination and, insofar as the wall was built to
protect Israeli settlements in the West Bank and East Jerusalem, that he
had "serious doubt that the wall would...satisfy the proportionality
requirement to qualify as legitimate self-defense." The nuance in
Buergenthal's narrow dissent contrasts sharply with, for instance,
Kerry's categorical statement that Israel's barrier "is not a matter for
the ICJ."
To
the contrary, Israel's construction of the wall in the West
Bank
has flagrantly violated clear standards in international law. The
clarity of the violations accounts for the willingness of the UN General
Assembly to request an advisory opinion on the wall from the Court, a
right it has never previously exercised in relation to the
Israeli-Palestinian conflict. The clarity also helps to explain
Israel's refusal to participate in the ICJ proceedings-not even to
present its claim that the barrier under construction has already
reduced the incidence of suicide bombing by as much as 90 percent.
Significantly, the Court confirms that Israel is entitled to build a
wall to defend itself from threats emanating from the Palestinian
territories if builds the barrier on its own territory. The justices
based their objection to the wall on its location within occupied
Palestinian territories, as well as the consequent suffering visited
upon affected Palestinians. If Israel had erected the wall on its side
of the boundary of Israel prior to the 1967 war, then it would not have
encroached on Palestinian legal rights. The Court's logic assumes the
unconditional applicability of international humanitarian law, including
the Fourth Geneva Convention, to Israel's administration of the West
Bank
and Gaza
(a principle affirmed by Judge Buergenthal). That body of law obliges
Israel to respect the property rights of Palestinians without
qualification, and to avoid altering the character of the territory,
including by population transfer. Thus, the Court affirmed that Israeli
settlements in the Palestinian territories are direct violations of
Article 49(6) of the Fourth Geneva Convention. Walls and fences built to
protect these settlements only compound their illegality.
The
decision creates a clear mandate. The ICJ decision, by a vote of 13-2,
imposes upon all states an obligation not to recognize "the illegal
situation" created by the construction of the wall. This is supplemented
by a 14-1 vote urging the General Assembly and Security Council to
"consider what further action is required to bring an end to the illegal
situation."
Such
a plain-spoken ruling from the characteristically cautious International
Court of Justice will test the respect accorded international law,
including US willingness to support international law despite a ruling
against its ally. The invasion of Iraq and the continuing scandals have
already tarnished the reputation of the United States as a law-abiding
member of the international community. When US officials dismiss the
nearly unanimous ICJ decision without even bothering to engage its
arguments, America's reputation suffers further. In fact, elsewhere in
the world, a US repudiation of this decision can only entrench existing
views of America as an international outlaw.
*Richard Falk is professor emeritus of international law at Princeton
University and author of over 20 books, most recently The Great Terror
War (Interlink, 2003).