(Editor's Note: This article was written before yesterday's UN General Assembly vote backing last week's World Court ruling that Israel's separation wall in the West Bank violates international law and must be torn down. The vote was 150-6, with 10 abstentions. UN General Assembly resolutions against Israel for its myriad transgressions against the Palestinians are routinely rejected by the US and its client Israel, with vote tallies like 151-2 being common. This time around the US and Israel managed to enlist their closest allies to vote against the resolution: major international players Australia, the Marshall Islands, Micronesia and Palau.)
When The Hague speaks, the world listens, especially when a threat to international peace is involved. At least this was the case until the International Court of Justice took aim at Israel. At issue was the Israeli government’s building of a separation wall on occupied Palestinian lands in the West Bank, which, in essence, has caged Palestinian communities into ghettos reminiscent of the Jewish ghettos in Europe during World War II. The now infamous separation wall is center stage of an international campaign aimed to end the illegal Israeli military occupation of the West Bank, Gaza Strip and East Jerusalem - all areas occupied by force in 1967 when Israel’s military assumed control, the same way the US entered Iraq and assumed control of everyday life there.
The United Nations General Assembly was faced with complaints that the separation wall that Israel is building had nothing to do with Israel’s security and everything to do with Israel grabbing more Palestinian lands by force and creating impossible living conditions for Palestinians. Israel’s real intention is to continue the strangulation of the Palestinians in hopes that this would lead to their subjugation and force Palestinians to dismiss their international right to statehood, self-determination and right to return. The separation wall is Israel’s final solution for all those Palestinian families that were displaced by Israel’s creation in 1948 and subsequent military aggression in 1967 and afterwards.
On 8 December 2003, the United Nations General Assembly requested what is called an “Advisory Opinion” from its legal arm, the International Court of Justice. Immediately, Israel and the United States claimed that the International Court of Justice did not have jurisdiction to rule in the case. Israel and the US lost this argument when the judges unanimously, all 15, including one American judge, decided that the Court does have the full right and jurisdiction over the case.
The outcome of hearing the case against the Israeli separation wall was expected by all. All involved knew that the wall, in and of itself, could not be discussed in a vacuum, but rather the entire 37-years of Israeli military occupation would be put on trail, including the decades long Israeli policy of illegally building Jewish-only settlements and moving Israeli squatters to live in these military compounds that are located in the midst of Palestinian population centers and spread throughout the West Bank, Gaza Strip and East Jerusalem.
On 9 July 2004, the International Court of Justice issued its Advisory Opinion, as requested by the UN General Assembly. The Court’s opinion stated the following, with American Justice Thomas Buergenthal being the constant dissenting vote,
By fourteen votes to one,
“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”
By fourteen votes to one,
“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.”
By fourteen votes to one,
“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.”
By thirteen votes to two,
“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.”
By fourteen votes to one,
“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.”
These decisions are part of the 59-page Advisory Opinion that has now been submitted to the requesting party, the United Nations General Assembly. Israel has already stated, even prior to the Advisory Opinion being issued, that it will not abide by the Court’s findings. The US is towing the same Israeli line. This being the case, the question that begs an answer is what can an entire community of nations do if the violating party, Israel in this case, and the world’s sole superpower shun an International Court opinion? Also, what can the UN General Assembly do given that usually its decisions are non-binding, unlike the UN Security Council where any of its members can use their veto power to stop any action? When Israel is involved, the parallelization of any Security Council action is real since the US historically and systematically exercises its veto power to safeguard Israel from international actions which aim to force it to an end its illegal occupation.
The next steps in this landmark Advisory Opinion are currently high on the agenda of the Palestinians as well as many countries of the world – all seeking to find a non-violent way to end the military occupation that has drained the region and the world, let alone taken tens of thousands of lives, both Palestinian and Israeli.
Under a United Nations procedure called "Uniting for Peace," the UN General Assembly can demand an immediate ceasefire and withdrawal of Israel from the Occupied Palestinians lands. The General Assembly may also call for a United Nations Peacekeeping Force to be sent to Palestine to protect the Palestinians from the occupying power. The "Uniting for Peace" procedure has been used before, by none other than the United States. As explained by historian and author Jeremy Brecher,
“When Egypt nationalized the Suez Canal in 1956, Britain, France, and Israel invaded Egypt and began advancing on the Suez Canal. U.S. President Dwight D. Eisenhower demanded that the invasion stop. Resolutions in the UN Security Council called for a cease-fire--but Britain and France vetoed them. Then the United States appealed to the General Assembly and proposed a resolution calling for a cease-fire and a withdrawal of forces. The General Assembly held an emergency session and passed the resolution. Britain and France withdrew from Egypt within a week.”
“The appeal to the General Assembly was made under a procedure called "Uniting for Peace." This procedure was adopted by the Security Council so that the UN can act even if the Security Council is stalemated by vetoes. Resolution 377 provides that, if there is a "threat to peace, breach of the peace, or act of aggression" and the permanent members of the Security Council do not agree on action, the General Assembly can meet immediately and recommend collective measures to U.N. members to "maintain or restore international peace and security." The "Uniting for Peace" mechanism has been used ten times, most frequently on the initiative of the United States.” (CounterPunch, March 5, 2003)
Dr. Richard Cummings, an international law professor with degrees from Columbia Law School and Princeton who has a Ph.D. from Cambridge and taught international law at the Haile Sellassie I University and formerly was the Attorney-Advisor with the Office of General Counsel of the Near East South Asia region of USAID, where he was responsible for the legal work pertaining to the aid program in Israel, Jordan, Pakistan and Afghanistan has made similar observations regarding the UN and Israel in his essay, Human Rights, International Law and Peace in the Middle East (Tikkun, Jan 2004). Dr. Cummings notes,
“At this juncture, we are faced with a choice. Do we lapse back into the primitive balance of power approach that has always broken down and led to wider wars, or do we accept the legitimacy of Woodrow Wilson’s vision of a just international order under the rule of international law? I would suggest that it is time to revive Wilson’s legacy and turn to the International Court of Justice, which was brought into existence at the birth of the United Nations.”
“Failure by a United Nations member or entity with observer status to adhere to the advisory opinion on any matter of law could specifically give rise to a suspension by the General Assembly of its voting rights…” Such an example is when South Africa was in violation of an advisory opinion of the World Court and lost its voting rights.
“An opinion from the Court would be sufficient to override such a [Security Council] veto, under the provisions of Article 14, which provides that “the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.”
“Indeed, the United States would be hard-pressed to object to this strategy. When, during the Korean war, the Soviet Union ceased its boycott of the Security Council and vetoed resolutions that would have continued United Nations support for the multinational force, the United States successfully obtained a “Uniting for Peace” resolution in the General Assembly to support the force, under Article 14 (UN General Assembly Resolution 377A, November 3, 1950). In this case, because the initial action had been authorized by the Security Council in the Soviet Union’s absence, the subsequent Uniting for Peace Resolution had sufficient force in law. As the United States would continue to veto any peace keeping force in the Security Council, the advisory opinion would remedy the deficiency of a previous Security Council resolution, which, unlike General Assembly resolutions, have a quasi-legislative nature.”
“Armed with an International Court of Justice advisory opinion, the General Assembly could once and for all move to make its opinions binding on the parties involved, thus bypassing the Security Council that is perpetually blocked by the veto of the United States, which it invokes in pursuance of its own agenda unrelated to the needs of the rest of the world.”
International Law must be defined by the world institutions that were established for the purpose, and not by the existing superpower or the party to the conflict that can hire the better public relations firms. The clear and unequivocal end to Israeli occupation, in all its forms, has the power to bring justice, security and stability to a region on the verge of self-destruction.
The International Court of Justice’s Advisory Opinion could be the ladder that world leaders, including Israeli and US, use to climb down the tree of oppression and occupation. If this opportunity is ignored, the result will only be more bloodshed and killing. The US and our Israeli neighbors must come to the realization that military occupation and security can never peacefully coexist.
Furthermore, time is past due for the Palestinian leadership to take professional legal advice and assume responsibility and act legally to channel, not only last week’s International Court Decision, but also the millions around the world that stand in unwavering solidarity with the just Palestinian cause. Atty. Francis A. Boyle, a renowned expert in international law and author of an indispensable, fact-packed new book titled, Palestine, Palestinians and International Law (Clarity Press, Inc, 2003), sheds a glaring light on how the Palestinian leadership has repeatedly ignored professional legal advice, even when it was commissioned by them. This includes dismissing the strategy of invoking the UN General Assembly’s Uniting for Peace Resolution from as far back as 1988. The Palestinian people can no longer accept this incompetence in dealing with ending the Israeli occupation. The last four years of continuous Israeli aggression, which left each and every Palestinian living in open air prisons, leaves no doubt in anyone’s mind that Israel’s intentions for over the last five decades have absolutely nothing to do with peace or coexistence.
Israel, your time is up -- enough terror, killings, assassinations, bombings, home demolitions, arbitrary arrests, and violations of Palestinians’ human rights. Israel must tear down this illegal Apartheid Wall and bring its military occupation of Palestine to an end so it may finally join the community of nations.
Sam Bahour is a Palestinian-American businessman living in the besieged Palestinian City of Al-Bireh in the West Bank and can be reached at firstname.lastname@example.org. He runs a mailing list at http://lists.riseup.net/www/info/epalestine. Additional articles may be found at: www.amin.org/eng/sam_bahour/index.html.
Other Articles by Sam Bahour and Michael Dahan