MaximsNews

To Today's News from the U.N. and the World, visit: MaximsNews.com Established 1999.

MaximsNews.com, News Network Reaching Over 10,000 in the International Community, now in association with MediaChannel.org and Globalvision News Network, global news and media information services with more than 300 news affiliates in 135 countries.

Ian Williams is a journalist and U.N. Correspondent for The Nation and a weekly columnist for www.MaximsNews.com [See his Bio. See his columns listed below. Ian Williams' email: uswarreport@igc.org ]

UNITED NATIONS -- 22 July 2004 / www.MaximsNews.com / Mr. Sharon, Tear Down This Wall!

People who attack the World Court for its 9 July opinion on the Israeli Wall in the Occupied Territories should beware.

In doing so, they are calling into question the United Nations Charter, and the whole foundation of international law and humanitarian conventions and treaties: which in the end are the legal basis of the State of Israel’s international recognition, and, in a broader sense, everyone else’s best hope for a global order that does not rely on anarchistic violence and force majeure.

It is not often that the Court comes out with such an unequivocal opinion, nor indeed that the General Assembly has such an outstanding majority as 150-6 in accepting the decision as it did on Tuesday 20 July.

Israel could only get the U.S. and Australia and a handful of Pacific microstates to back it.

Just because it ruled against Israel and, by extension, its U.S. protector, on every point does not invalidate the reasoning for the rest of the world.

Rather it is a wake-up call to Sharon and his supporters in the U.S. to reconsider their stands and return from extralegal orbit.

You cannot cherry-pick international law, enforcing the parts you like on others and denying those that impinge on your interests.

Sadly, the one dissenting vote was the American judge Thomas Buergenthal, who said the opinion did not take into account Israel’s need to protect itself against terrorism.

His opinion was seconded by many American politicians more mindful of the coming election than ensuring a sound and peaceful world order.

The Court considered the issue of Israel’s security needs and the threat of terrorism in some depth and length in its 56 page opinion – and it concluded that if Israel wanted to build the Wall, it could do so entirely legally - on its own side of the Green Line.

Indeed it specifically excluded the small section of the Wall built in Israel from its judgment.

However, Holocaust survivor Buergenthal was much more honest than those who shouted “kangaroo court.” His dissenting opinion was in its own way equally devastating for Israel’s case.

“there is much in the Opinion with which I agree,” and “I share the Court’s conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must there be faithfully complied with by Israel,”

“Paragraph 6 of Article of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies.

It provides that ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’

I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6.

It follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law. Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall,

I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence.”

Further weakening accusations of inbuilt bias, just before the hearings, Howard Meyer, the authoritative historian of the World Court pointed out that the lead counsel designated for Israel if it appeared before the Courtwould “be Dr. Shabtai Rosenne, an Israeli diplomat and long time observer of the I.C.J.

As student of the Court he has written more books about its procedures and its rulings than anyone.

In 1989, four years after the U.S. walked out of the Courthouse in Nicaragua 's case, Rosenne wrote in an introduction to a new edition of one of his works on the Court that it had "rendered important services in the evolution of international law through the United Nations and in the peaceful settlement of disputes, more in the last decade than in the first thirty years of its existence….it has performed a major service to the international community as a whole because the need to bring international law into line with present-day requirements is real and urgent.’”

It does not help the detractors’ case that the Israeli Supreme Court itself ruled last month that the route of the Wall violated international humanitarian law, even it did not go so far as to rule occupation and settlements illegal!

It is hardly biased of the I.C.J. to find that the occupied territories are indeed occupied and that the settlements are illegal.

That is the position that the U.N. has always taken and even the U.S. had supported explicitly until very recently.

The Israelis beg to differ, but then Saddam Hussein decided unilaterally that Kuwait was his Nineteenth Province and the world disagreed with him.

Presumably well-lobbied beforehand, most of the American media reports about the case have consistently sought to qualify the Court’s opinion as “non-binding.”

Of course, an authoritative statement of international law, issued by a 14-1 majority is non-binding only if you do not accept the applicability of International Law.

In reality, it would be difficult to get a more authoritative decision, not least since this opinion is being delivered to the General Assembly of the United Nations – with part of the opinion being that states party to the various conventions have a duty to enforce them on Israel!

The combination of the Court and the General Assembly is the route that led to the independence of Namibia and sanctions against South Africa.

It is the route that led to the eventual independence of East Timor – and a route that has kept Morocco’s annexation of Western Sahara unrecognized by any other country in the world.

It may be slow – but such opinions are binding on all law-abiding countries.

Indeed, it was the General Assembly that voted for the partition of mandatory Palestine into Jewish and Arab states

If they had sent people to place bombs next to the wall, or launched armored bulldozers against it, they would have been roundly condemned for terrorism.

So they go to Court and find both them and the Judges condemned for bias and worse!

It is instructive to see what the Court actually said. First of all, the Court decided that it did indeed, despite the U.S. and the Israeli opposition, have the right to consider the question, and that the U.N. General Assembly indeed had the right to ask it to do so. In this, as in all its other issues, it cited numerous precedents for its reasoning.

Then the Judges voted by 14 to one, with Judge Buergenthal dissenting in each case, not against the substance but because he did not think it should hear the case, that:

· “The construction of the wall being built by Israel , the occupying Power, in the Occupied Palestinian Territory , including in and around East Jerusalem , and its associated régime, are contrary to international law.

· Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.”

· “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem .”

The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion...”

In a very important clause, Buergenthal was joined by the Dutch judge in his dissent when the court , but it was nevertheless passed by 13 to 2.

· All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”

However the decision has many other implications that should hearten all who want a law-based solutions to the world’s problems.

The Court had already allowed Palestine as an entity all the privileges of a state in representation to the Court and it refers to Palestine throughout on a par with Israel as a party to the proceedings.

It had then further gladdened Palestinian hearts by vindicating their whole Palestinian position of reasserting international law and U.N. decisions on the issue, as opposed to U.S. and Israeli attempts since Oslo to relegate the conflict to a bilateral issue, excluding the United Nations.

“Given the powers and responsibilities of the United Nations in questions relating to international peace and security,” says the opinion, the Wall was of direct concern to the organization and while it welcomed the “Road Map” and negotiations for a settlement, it qualified that such negotiations as being “on the Basis of International Law.”

Interestingly it also finds that the International Covenant on Civil and Political Rights applies to all people that a state has jurisdiction over, which means that they apply to the Occupied Territories – and so one must conclude would also apply to the U.S. in places like Guantanamo Bay, although the Court does not wander that far that explicitly.

It also affirmed the applicability of other conventions that the Israelis have signed to people in the territories.

As a coup de grace, the Court notes that the Wall’s route has been drawn to include over 80 percent of the settlements – and it rules that the settlements are illegal, a violation of the Fourth Geneva Convention, as repeated Security Council resolutions have also termed them, not merely “unhelpful” as the Clinton reformulation of the American position has it.

In a further blow to the expedient American position that decries the “Uniting For Peace Resolution” which allows issues stalled by vetoes in the Security Council to be dealt with by the General Assembly, the Court ruled that the procedure was indeed valid – and obligingly cited precedents from the time that the U.S. and others had pioneered the procedure.

The Palestinians had of course used this just procedure in the face of yet another American veto in the Security Council to ask for the opinion from the I.C.J.

Sadly, an expedient Clinton administration had declared the procedure as “no longer applicable.”

This was in fact a telling demonstration of how expediency in such matters can trip you up later.

It would have been ready made to by-pass the threatened Russian veto on Kosovo, and indeed the Canadian-convened international commission’s report on the Responsibility to Protect mentions is a ready made tool to allow genuine humanitarian intervention in the face of Security Council vetoes. It could even be a mechanism to take action about Darfur.

The General Assembly resolution stated “Considering that acceptance of Advisory Opinions issued by the International Court of Justice is essential to the rule of law and reason in international affairs,” so most states voted to accept the resolution, since to do otherwise would indeed be tantamount to a vote of no confidence in the U.N. Charter.

The resolution asks the Secretary General to compile a register of property damage caused by the construction – which is innocent sounding but allows a suit for damages.

While restating the opinion, the draft mostly leaves the issue hanging like a sword of Damocles – until after the American election, when the diplomatic mills will begin to grind.

It does also reiterate focus on the Court’s finding that states have a duty to apply international law when it is flouted.

After all, how can democratic governments outside the U.S., particularly the EU, explain away to their people their failure to “ensure compliance by Israel with international humanitarian law,” when told by the world’s highest court that they have an obligation to do so?

The resolution, unanimously supported by the EU, will certainly strengthen pressure inside Europe to take a stronger line against Israel’s behavior, and the EU is a far bigger trading and commercial partner for Israel than the U.S.

The nightmare for Israel is South African style sanctions, both state imposed and consumer boycotts.

But the way to avert that is simple, and mandated by the Court and the General Assembly and even hinted at by the Israeli Supreme Court

William Safire – Warped, on Speed, or Just Running Mad Again? 13 July 2004

Hastily Contrived, Verbose, and Fudged: Security Council Resolution 1546 16 June 2004