Issue 117: Referral of Israel’s Security Fence to the ICJ

On February 23rd, the International Court of Justice (ICJ) will begin hearing the case of Israel’s security fence, referred to it by the General Assembly (GA) after a vote of 90 for, 8 against, and 74 abstentions.  Given the complexity of issues and enormity of attention, a brief guide to the proceedings is in order.

At Issue:
The path of the fence, and not the fence itself, is the subject of contention.

Dipping at times into the West Bank, the fence is decried by Palestinians as a “land grab,” an attempt by Israel to create de facto borders on occupied territory.  And by isolating cities and separating workers from their land, it makes daily life into an ordeal.  Israel maintains that the fence is necessary to deter suicide bombers, and can be rolled back if violence abates and real negotiations ensue; the over 900 deaths so far, however, cannot be “rolled back.”  By failing to curb terrorism, the Palestinians have in effect left the job up to Israel.

The ICJ, assuming it agrees to take the case, will issue an advisory opinion on whether the fence is legal under international law.  While non-binding, its determination will likely impact public opinion.

At Odds:
Over forty states have filed briefs with the Court, arguing 1) either for or against its jurisdiction and 2) their position on the fence.  The argument “for” is led by the Arab League and Organization of the Islamic Conference.  They insist that the fence violates human rights law and as such, merits ICJ adjudication.

Joining Israel in the argument “against” are 33 countries, including the US, Japan and the European Union.  They counter that the issue is highly political, and should be handled through the already established mechanism of negotiations.  With a delicate peace process and Road Map in place-endorsed by SC Resolution 1515 in November-a court’s decision will only prejudice one side against the other, further retard efforts and undermine another UN organ.

It bears adding that a number of those siding with Israel on jurisdiction do not support the fence’s path.  However, fearing for the ICJ as an institution-once dispassionate and contemplative, soon perhaps politicized and compromised-they joined Israel in opposition.

At Stake:
Aside from Palestinian and Israeli standings, the UN and ICJ will be affected by the outcome.  If the ICJ takes the case and a firm stance, it might become a target for abuse by states seeking loopholes.

Although the UN Charter provides for ICJ jurisdiction on all legal questions referred by the SC or GA, its opinions are meant to facilitate UN work and not act as a substitute to negotiations.  However, it appears that by bypassing the Road Map and bilateralism, the GA is asking for precisely this.

Even the text of the GA referral is questionable, as it asks for an opinion on “the legal consequences for the construction of a wall on Occupied Palestinian Territory.”  In adopting disputable language (Palestinian “wall”) and assuming the existence of legal consequences (“what are” over “if there are”), the question prejudices the Court’s answer.

And these are just the highlights.  In the coming days, and with the world watching, 15 judges will have to strike a
balance between politics and law, and integrity and abuse-even before talking about the fence.


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